A new immigration rule ending the automatic extension of employment authorization documents could lead employers to remove workers from payroll. Attorneys expect the Trump administration’s action to disrupt workplaces due to expected delays in U.S. Citizenship and Immigration Services processing. They question the need for the rule to go into effect immediately. The rule could be challenged in court.
Employment authorization documents allow individuals to work lawfully in the United States. While a lawful permanent resident or naturalized citizen has the right to work, a temporary visa holder or other “nonimmigrant” must have employment authorization. To address long processing delays for employment authorization documents, or EADs, the Biden administration published a rule allowing a 540-day automatic extension if USCIS did not complete processing an EAD application before the work permit expired. The new Trump rule overturns that regulation for new applications.
The rule represents another administration policy that makes it more challenging for foreign-born individuals to work or study in the United States. Other recent actions include imposing a $100,000 fee on the entry of new H-1B visa holders and a rule restricting international students by replacing the current “duration of status” policy with fixed admission periods.
An Oct. 30 Department of Homeland Security rule is expected to cause problems for employers and workers by eliminating the 540-day automatic extension of employment authorization documents, or EADs, allowed under a Biden administration rule published on December 13, 2024. That rule, which took effect Jan. 13, addressed the problem of individuals forced off payroll because their EAD expired before USCIS completed processing.
“Lapses in employment authorization and EAD validity can result in substantial harm to noncitizens, their families, their employers, and the public at large,” according to the December 2024 rule. “To help prevent the harmful effects of these gaps, DHS is amending its existing regulations to permanently increase the automatic extension period applicable to expiring employment authorization and/or EADs for certain renewal applicants from up to 180 days to up to 540 days from the expiration date stated on their EADs.”
The Trump administration’s interim final rule, or IFR, goes into effect on the date of publication in the Federal Register (Oct. 30) and takes the opposite approach of the Biden rule, published only months earlier. “This IFR amends DHS regulations to end the practice of automatically extending the validity of employment authorization documents (Forms I-766 or EADs) for aliens who have timely filed an application to renew their EAD in certain employment authorization categories,” according to the new rule’s summary.
Attorneys worry about the impact on employers and individuals. “For employees caught in the green card backlog who are renewing their employment authorization documents, there is an increased chance that they will have to go off payroll,” said Lynden Melmed of BAL in an interview. “Often these individuals have been in the U.S. for over a decade and have repeatedly renewed their employment documents. Even if they file on the first day of eligibility, government processing times are often more than six months long and so they will lose work authorization.”
According to the Federal Register notice, the rule “does not impact the validity of EADs that were automatically extended prior to Oct. 30, or which are otherwise automatically extended by law or Federal Register notice.” It should not affect the 180-day extension allowed for F-1 students on Optional Practical Training applying for STEM OPT, which falls under a different regulation, though it is possible that DHS could take a more restrictive view that interprets the new rule to apply to STEM OPT.
The rule creates additional difficulties by taking effect immediately. “Because there was no warning this change would be implemented, as you would at least have through the normal notice and comment regulatory process, individuals and employers have been unable to plan ahead for this change,” according to Kevin Miner of Fragomen. “This will be very disruptive for employers who may have an unexpected disruption in their workforce in a few months and will be especially hard on families who are relying on income from a family member with work authorization through an H-4 EAD or similarly affected EAD that does not get renewed in time.” (H-4 EADs are for the spouses of H-1B visa holders eligible for work authorization.)
Miner notes the lengthy processing for renewing employment authorization documents. While USCIS states on its website that processing takes approximately seven months for an EAD for adjustment status (for permanent residence), USCIS will not accept a renewal request until six months before an authorization expires. Some applications take nine months or longer, and further delays could leave people out of work for three to six months or more. “Unless USCIS can make dramatic improvements in the amount of time it takes to process a renewal application, this is going to cause real problems for both employers and families,” said Miner.