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On October 14th, 2026, the Department of Homeland Security (DHS) published two rules in the Federal Register, affecting employment authorization for foreign workers. Firstly, the DHS, along with U.S. Citizenship and Immigration Services (USCIS), finalized restrictions on automatic extensions of Employment Authorization Documents (EADs). Secondly, the agencies proposed ending deference to previous eligibility determinations for certain nonimmigrant visa extensions. Earlier this year, in July, the USCIS issued updated Temporary Protected Status (TPS) guidance for seven countries.
What Is the U.S. Citizenship and Immigration Services (USCIS)?
The U.S. Citizenship and Immigration Services (USCIS) is the federal agency that issues immigration benefits, including employment-based petitions and work authorization applications. Specifically, the USCIS reviews employer petitions for temporary foreign workers, including H-1B and L-1 visa classifications. Additionally, the agency processes EAD applications for foreign nationals who must obtain employment authorization before working in the United States.
Under federal law, employers must verify that employees are legally authorized to work. Employers must also comply with employment eligibility verification requirements.
What Employment Authorization Rule Was Finalized?
On October 14th, 2026, the Federal Register published a final rule eliminating automatic EAD extensions for certain foreign nationals. The rule took effect immediately and finalized an interim rule originally issued on October 30th, 2025.
Previously, eligible foreign nationals who submitted timely EAD renewal applications could receive automatic extensions lasting up to 540 days. These extensions gave individuals the ability to maintain employment authorization while USCIS processed their renewal applications. However, under the new requirements, individuals who filed EAD renewal applications on or after October 30th, 2025, generally no longer qualify.
This change affects several categories of foreign nationals, including:
- H-4 spouses of H-1B workers,
- adjustment-of-status applicants, and
- certain refugees and asylees.
Consequently, some employees may lose employment authorization when their existing EAD expires if the USCIS has not approved their renewal. These employees generally must stop working until their employment authorization resumes.
It is important to note, however, that certain exceptions are available. For example, qualifying refugees and asylees may retain employment authorization through their immigration status after their EAD expires. Nevertheless, these employees must provide acceptable documentation of continued work authorization when required. Additionally, qualifying renewal applications filed before October 30th, 2025, may retain previously authorized automatic extensions. Certain extensions established by law or Federal Register notices also remain available.
What Employment Authorization Rule Was Proposed?
Meanwhile, also on October 14, the DHS published a proposed rule eliminating deference to previous USCIS eligibility determinations when reviewing certain nonimmigrant visa extension petitions. Currently, the USCIS generally defers to earlier approvals when extension petitions involve the same parties and underlying facts. However, exceptions apply when, according to the DHS, the agency identifies:
- A material error in the previous approval;
- A material change in circumstances or eligibility requirements; or
- New material information that adversely affects eligibility.
Under the proposal rule, USCIS officers would no longer be required to defer to previous approvals. Instead, officers could conduct a new eligibility review based on the evidence submitted with each petition. If finalized, the change would affect several temporary employment classifications, including H-1B, L-1, and other nonimmigrant worker categories. As a result, employers seeking visa extensions could face added documentation obligations and more Requests for Evidence (RFEs). Furthermore, employers could experience processing holdups even when an employee's duties and employment circumstances remain unchanged.
Because the rule is not final and is only proposed, DHS is accepting public comments on Regulations.gov through November 13th, 2026.
Employer Takeaways
In conclusion, employers should review their immigration-related employment practices to address the finalized EAD requirements and be ready for potential changes. Specifically, employers should track upcoming employment authorization expiration dates and encourage employees to submit EAD renewal applications early. Additionally, employers ought to maintain and complete employment authorization reverification when required. We also recommend speaking with your company’s legal counsel to guarantee compliance with ever-changing immigration laws.
WorkWise Compliance offers monthly and annual compliance plans to help businesses manage their employment law obligations, including access to compliance resources and virtual consulting services. These services can help employers stay updated about changing federal employment regulations.
