On October 14, 2026, DHS published 2 rules that are likely to make immigration renewals and extensions less predictable for employers. The first rule makes the end of automatic extensions for many EAD renewals permanent. This means that employees can now lose work authorization while a timely filed renewal is still pending. The second rule would remove the requirement that USCIS generally defer to prior approvals. In essence, the second rule would open unchanged extensions to fresh scrutiny.
The article below covers what each rule does, who is affected, and how employers can prepare.
What does the final rule ending automatic EAD extensions do?
The final rule makes the end of automatic extensions for many EAD renewals permanent.
Before October 30, 2025, a timely filed renewal would keep an employee’s work authorization and EAD valid while USCIS processed the application. Renewals filed on or after October 30, 2025 do not receive that protection. If the USCIS has not approved the renewal by the time the current EAD expires, the employees could lose work authorization the next day. The rule would affect H-4 spouses, adjustment-of-status applicants, asylum seekers and others who rely on EAD renewals to keep working.
The rule took effect on publication, October 14, 2026.
Is this a new policy, or has it already been in place?
This is not a new policy and already has been in place. DHS eliminated automatic extensions of up to 540 days through an interim final rule effective October 30, 2025. The final rule adopts the interim rule without substantive changes.
Can an employee continue their employment while an EAD renewal is pending?
Affected employees who rely on their EAD for work authorization can generally continue working until the current EAD expires. Employers should reach out to counsel to confirm if the employee qualifies for an exception or will require another basis for work authorization.
Employers must track EAD expirations and reverify on Form I-9 by the expiration date; a renewal receipt is not acceptable for renewals filed on or after October 30, 2025 that do not qualify for an exception.
Are there any exceptions for the rule, such as for Temporary Protected Status?
Yes, there are exceptions. The final rule preserves exceptions provided by law or by applicable Temporary Protected Status notices. The final rule also preserves automatic extensions for renewals filed before October 30, 2025, and STEM OPT applicants keep their 180-day extension.
Will an early filing prevent work authorization gaps?
DHS acknowledges that early filing may not prevent every work authorization gap. However, it is generally recommended to file up to 180 days before the EAD expires. USCIS processing delays mean gaps can occur even when employees file on time and remain otherwise eligible.
How many workers and employers does DHS expect to be affected?
According to DHS, 20,000-30,000 EADs could lapse while renewals are pending, affecting 1,700-2,800 employers over an 18-month period. It projects about $312 million in employer turnover costs and up to $138 million in lost productivity. As per what DHS concludes, additional screening and vetting before extending work authorization justify these costs.
An important caveat here is that the final rule sets no guaranteed processing deadline and does not expand premium processing to cover expected gaps.
Has the rule been challenged in court?
Yes. In Jane Doe v. DHS (C.D. Cal.), a federal judge in September granted relief to 7 H-4 plaintiffs. The court found errors with DHS’s justification for bypassing notice-and-comment procedures when it issued the interim rule. What’s important to note is that the ruling only applied to those plaintiffs and did not restore automatic extensions in a broader sense.
Can the final rule face new legal challenges?
Yes. The final rule may resolve some of the procedural concerns raised in earlier litigation, but questions still linger about whether DHS sufficiently justified the expected employment disruptions, considered reliance interests, and explained why less disruptive alternatives would not meet its vetting goals.
Some further challenges could also take a closer look at irreparable harm. Losing the ability to work can have consequences beyond lost wages, especially for employees who are facing long USCIS delays and for employers that cannot readily replace them. The successful challenge to the $100,000 H-1B fee shows that broader relief against immigration policies remains possible, though the legal grounds in each case may differ considerably.
What is the deference policy, and what would the proposed rule change?
As per the current set of rules, USCIS generally defers to a prior approval when adjudicating specified Form I-129 petitions involving the same parties and underlying facts, most often an extension.
Officers can depart from a prior decision only when there was a material error, change in circumstances, or new material information that adversely impacts eligibility, per the regulation. The proposed rule is expected to remove that deference requirement. This would allow officers to reassess eligibility even when none of those exceptions applies and nothing materially changes. This could lead to renewed scrutiny of issues USCIS previously accepted, even when the employee’s role and the employer’s circumstances are just the same. At present, the proposal has not taken effect, and the current deference protections remain in full effect until it is finalized.
Can USCIS revisit prior approvals under current rules?
Yes, USCIS is authorized to do so. Under the current deference framework, USCIS can depart from a prior determination if they find a material error, a material change in circumstances, or new material information that adversely affects eligibility. The burden of proof stays with the petitioners as they remain responsible for establishing eligibility with each filing. The proposal may go further by allowing officers to revisit approvals even if none of the above mentioned exceptions apply.
Can employers or the general public comment on the proposal?
Yes, employers and the general public may comment on the proposal. The proposed rule has a 30-day public comment period that begins on publication, October 14, 2026. Comments are due on November 13, 2026. The public and the employers may also want to describe how added scrutiny of unchanged extensions is likely to affect their operations.
How many more RFEs does USCIS expect if deference is eliminated?
USCIS estimates approximately 6,000 additional RFEs per year. DHS's historical analysis associates removing deference with a 2.9 percentage point increase in RFE rates, but finds no corresponding change in denial rates. In practice, more RFEs may imply increased time for preparations, potential processing delays and a rise in legal costs for employers.
How does the proposal interact with USCIS's August 2026 policy allowing denials without an RFE?
The current proposal follows USCIS Policy Alert PA-2026-05, issued in August 2026, which allows officers to deny petitions without first issuing an RFE when eligibility has not been established. When combined, these changes lead to an increased risk of both RFEs and outright denials without an RFE. The same holds true for the extensions where the position and employment circumstances are still the same. In conclusion, the initial filing is extremely vital since employers may not be able to fill in the evidentiary gaps later.
How early should employers start EAD renewals and visa extensions?
Employers should start as early as possible. For EAD renewals, DHS recommends filing within 180 days of expiration. The best approach is to prepare supporting documents early, identify potential issues, and evaluate relevant options. Likewise, the right filing time should also be confirmed with the counsel.
What evidence should employers include in extension petitions?
Employers should prepare extension petitions beforehand with comprehensive evidence, even for positions USCIS has previously approved. It is important to approach the extension as if it will be reviewed afresh altogether. Keep prior filings and supporting records accessible, and update the evidence for each extension.
Conclusion
When looked at together, the 2 rules appear as a shift in how employers should approach renewals and extensions. While the EAD final rule is already in effect, the deference proposal is not yet final. If finalized, the deference proposal would subject unchanged extensions to fresh scrutiny.
What’s important to note is that neither of these rules leaves room for last-minute filings. Employers concerned about the deference proposal should consider commenting and should consult counsel to assess how both changes affect their employees.
Alma is constantly keeping an eye on the recent developments on these rules and will keep you updated.
