Immigration Rule On Work Authorization Expected To Disrupt Businesses

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.

The Immigration Rule Goes Into Effect Immediately

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.

Attorneys Question The Immigration Rule’s Justification

The Trump administration has rested on the claim that ending automatic renewals will enhance security. According to the Federal Register notice, “The purpose of this change is to prioritize the proper vetting and screening of aliens before granting a new period of employment authorization and/or a new EAD.”

Attorneys dispute the rule’s justification. “The government’s justification is chest-puffing nonsense,” said Doug Rand, a senior advisor at USCIS during the Biden administration, in a statement. He notes that people were vetted before entering the United States and vetted again when applying for different immigration benefits. “The odds are, let’s say, rather low that the government is going to find some new goods on you during the re-re-re-re-vetting process while you wait for your second work permit. And if they were truly worried about the risks of delayed vetting, you know what they would do? Process your application faster! Not force you to give up your livelihood while they dress up inefficiency as national security.”

Jon Wasden of Wasden Law sees a larger agenda. “This is the first of two steps in the administration’s plan to damage employment authorization for temporary visa holders,” said Wasden in an interview. “Once automatic extension is gone, the next step is massive delays in adjudication times. This will force people out of work as they wait for an EAD.”

Wasden filed lawsuits against USCIS during Donald Trump’s first term due to the agency’s lengthy delays in renewing employment authorization documents for the spouses of H-1B visa holders in H-4 status. “The group that is hit hardest is the H-4 visa holders. These are people with advanced education, working as doctors, dentists, computer scientists, university professors and public school teachers. In the first Trump administration, this is exactly what happened. It caused a lot of damage to communities that came to rely on these professionals.”

He questions the legality of the new immigration rule. “The regulation creating automatic extensions was less than a year old,” said Wasden. “The question for courts is what has changed in the past nine months to justify this flip-flopping. Supreme Court precedent is pretty clear here, and the agency has to show new facts and provide a cogent rationale for the about-face. From what I have read, they don’t have it.”