At a Glance
- These developments affect US employers that employ foreign nationals.
- Employers not currently enrolled in E-Verify should consider enrollment, particularly if they intend to hire or retain employees with work authorization affected by this proposed rule.
- Employers should audit Form I-9 records to identify employees with work authorization in affected categories and track upcoming expiration dates.
Background
The Department of Homeland Security (DHS) has implemented several rules that have limited, shortened, and otherwise affected eligibility for foreign nationals to secure temporary employment authorization. These sweeping changes affect employers' workforce availability and impact employment authorization reverification procedures required for Form I-9 compliance.
In October 2025, DHS eliminated the long-standing practice of automatically extending certain Employment Authorization Documents (EADs) for up to 540 days for individuals with timely filed renewal applications. Given lengthy EAD processing times, this change has created gaps in work authorization for applicants awaiting adjudication. Employers cannot lawfully continue employing workers during these gaps in work authorization.
In December 2025, DHS released a policy alert reducing the maximum EAD validity period from five years to 18 months for foreign nationals in certain categories, further destabilizing continuous work authorization for certain foreign national employees.
In February 2026, DHS issued a proposed rule affecting EADs for asylum seekers, notably permitting asylum seekers to apply for EADs 365 days after filing the asylum application instead of the current 180-day filing timeline. The rule also proposes extending the processing timeframe for USCIS to adjudicate initial EAD applications and introducing additional eligibility requirements.
Most Recent Proposed Rule Affecting EADs
And most recently, on June 5, 2026, DHS proposed a rule that would impose new restrictions for discretionary EADs. The proposed rule would limit eligibility, shorten validity periods, expand vetting requirements, and introduce automatic termination triggers upon changes in underlying immigration status.
Discretionary EAD Categories Affected
- Parolees (c)(11)
- Deferred action recipients (c)(14), including DACA (c)(33)
- Foreign nationals released from immigration detention with a final order of removal on an order of supervision (c)(18)
- Individuals granted withholding of removal or protection under the Convention against Torture (c)(18)
- Applicants for adjustment of status (c)(9)
- Spouses of H-1B workers (c)(26)
- Self-petitioners under the Violence against Women Act (c)(31)
Key Proposed Changes
Proposed Change |
The Result |
Affected EADs |
|
Renewal applicants must be employed by or seeking employment with an E-Verify employer in good standing. |
Employers who are not enrolled in E-Verify may be unable to retain affected employees after their current EADs expire. |
|
|
Applicants must submit financial documentation establishing economic necessity to work. |
Employees unable to demonstrate economic necessity may be denied work authorization. |
|
|
Applicants must submit biometrics at a USCIS Application Support Center. |
Processing delays may increase if biometrics appointments cause backlogs. Applicants who previously did not require in-person biometrics will now be required to appear. |
All discretionary EADs. |
|
EADs in certain categories are limited to one year, maximum. |
More frequent renewal cycles increase the risk of gaps in work authorization. |
|
|
EADs terminate automatically if the underlying immigration status ends, is denied, or the individual receives a final order of removal. |
An EAD card that appears valid on its face may no longer reflect valid work authorization status. |
All discretionary EADs. |
|
Applicants arrested for, charged with, indicted for, or convicted of any criminal act — or believed by DHS to have gang or terrorist ties — will generally be denied. |
Employees with any criminal history face heightened denial risk. |
All discretionary EADs. |
The proposed rule would apply only to applications filed after a final rule takes effect. Public submissions are due by August 4, 2026. DHS must review all submissions before attempting to finalize this proposal.
Employer Considerations
Review and Track Affected Employees
Given all of these regulatory and policy changes, employers must be alert to employment authorization reverification procedures and potentially revise policies. Employers should review Form I-9s and internal reports to identify employees whose EADs expire within the next six months and determine whether those employees hold EADs in categories affected by this proposal. Affected employees should be encouraged to file renewal applications as early as permitted, typically no more than 180 days in advance of current EAD expiration.
Consider E-Verify Enrollment
Employers who are not currently enrolled in E-Verify should consider whether to enroll, particularly if they intend to retain employees in affected categories should the rule be finalized.
Consider Auditing Forms I-9 Internally
An audit can help identify employees with missing I-9s, employees who need reverification of work authorization, and other substantive errors. In addition to ensuring that employers have current information regarding employees with EADs issued in one of the categories above (for employers who retain copies of identification and work authorization documents), internal audits that include correction efforts may reduce civil penalties in the event of an ICE I-9 audit. In addition to self-audits, employers should consider implementing I-9 training and regular refresher courses for personnel responsible for completing and reverifying Forms I-9.
Be Aware of Other Shifts in Temporary Employment Authorization
In addition to these EAD restrictions and limitations, DHS has been terminating Temporary Protected Status (TPS), resulting in litigation and uncertainty around validity of TPS-related work authorization. This requires employers to research and stay on top of country-specific TPS rules, auto-extensions, and reverifications for Form I-9 compliance. Most recently, the Supreme Court determined that DHS could proceed in terminating TPS for Haiti and Syria, which will result in thousands of workers in the US losing their work authorization.
Summer associate Haya Dodin contributed to this alert.
