Corporate Immigration Law News

Today, the Department of Homeland Security (DHS) issued an interim final rule, to be published tomorrow, October 30, eliminating the practice of automatically extending Employment Authorization Documents (EADs) for most foreign nationals who file timely renewal applications.  Invoking the “good cause” exception of the APA under 5 USC 553(b)(B)-(d)(3), DHS has issued this interim final rule without prior notice or public procedure.

Key Highlights:

• Effective October 30, 2025, foreign nationals applying for EAD renewals will no longer receive an automatic extension of their work authorization while the renewal application is pending.
• This rule applies to EAD renewals filed by eligible H4 spouses (C26); Applicants for Adjustment of Status (C09); Applicants for Temporary Protected Status (A12 and C19); and others
• DHS has stated that this change is intended to allow for more frequent screening and review of foreign nationals’ eligibility and background information before work authorization is extended.

Impact on Employers and Employees:

This rule significantly increases the risk of gaps in employment authorization for individuals in all categories previously covered by automatic extensions.

Employers should expect:

• Increased I-9 compliance risks, as employees who previously relied on automatic extensions may temporarily lose work authorization if renewal adjudications are delayed in adjudication.
• The potential need for workforce planning adjustments to manage interruptions in employment eligibility for affected employees.

Recommended Employer Action Steps:

1. Identify affected employees: Review your workforce to determine which employees currently rely on automatic EAD extensions.
2. Encourage early renewals: USCIS advises filing EAD renewal applications up to 180 days prior to expiration to mitigate lapses in work authorization.
3. Update HR protocols: Ensure that internal tracking systems and Form I-9 reverification processes account for the new rule and possible lack of  continuity of employment authorization.
4. Communicate proactively: Inform affected employees of the change well in advance to allow sufficient time to file for renewals and processing.
5. Monitor further guidance: DHS may issue additional implementation details or exceptions through forthcoming Federal Register notices.

Next Steps:

The interim final rule applies only to EAD renewals filed on or after October 30, 2025.
EADs that received automatic extensions before that date will remain valid under the prior policy until their stated expiration.

What this interim final rule presupposes is that U.S. Citizenship and Immigration Services (USCIS) will be able to adjudicate EAD renewal applications within the 180-day filing window—a pace that, based on current processing backlogs, is unlikely.  Given the tectonic operational and economic fallout expected from this change, and the fact that DHS bypassed the normal administrative rulemaking process by invoking the “good cause” exception under the Administrative Procedure Act (5 U.S.C. § 553(b)(B), (d)(3)), litigation is anticipated.

In the interim, it is strongly recommended that employers conduct an immediate audit of employees who rely on EADs and ensure that renewal applications are filed as close to 180 days prior to expiration as possible. Early filing will maximize the likelihood of renewal adjudication before current work authorization lapses and may help avoid unnecessary terminations resulting from this unfortunate policy shift.

If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, Lin R. Walker, or Stacey A. Simon.

Overview

On October 20, 2025 USCIS issued updated guidance regarding the September 19, 2025 Presidential Proclamation entitled “Restriction on Entry of Certain Nonimmigrant Workers”, which imposes an additional $100,000 payment on certain H-1B petitions as a condition of eligibility.

Below is a summary of the additional guidance:

Who Is Subject to the $100,000 Payment

The Proclamation applies to new H-1B petitions filed on or after September 21, 2025 in the following situations:

• Beneficiaries outside the United States who do not hold a valid H-1B visa.
• Petitions requesting consular notification, port-of-entry notification, or pre-flight inspection for beneficiaries, even if they are in the United States at filing.
• Petitions where a change of status, amendment, or extension of stay is denied because USCIS determines the beneficiary is ineligible for such relief (e.g., not in valid status, or departs the U.S. before adjudication).

The Proclamation does not apply to:

• H-1B visas or petitions filed before September 21, 2025.
• Current H-1B visa holders traveling abroad and reentering on existing visas.
• Amendment, change of status, or extension petitions for foreign national inside the U.S. if granted.
• Of Important Note: While not explicitly stated, a fair reading of the guidance would indicate that the additional payment would not apply to petitions (if granted) filed with respect to H-1B transfers requesting an extension of stay from inside the U.S. or any prospective H-1B cap cases filed for a foreign national requesting a change of status from within the U.S. Further, a foreign national beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition.

How and When to Pay

• The $100,000 payment must be made before filing the H-1B petition.
• Proof of payment via pay.gov or evidence of an approved exception must be included with the petition.
• Petitions without proof of payment or an approved exception will be denied.

Exception Process

The Secretary of Homeland Security may grant exceptions only in extraordinarily rare circumstances, where all the following are established:

1. The worker’s presence in H-1B status is in the national interest;
2. No American worker is available for the position;
3. The worker poses no threat to U.S. security or welfare; and
4. Requiring the payment would significantly undermine U.S. interests.

Requests for exceptions, with supporting evidence, must be sent to: H1BExceptions@hq.dhs.gov

Key Takeaways

• The Proclamation primarily affects new overseas hires and consular cases.
• Current H-1B employees and pending extensions or amendments within the U.S. are generally not affected.
• It appears clear that H-1B transfer petitions requesting an extension of stay and prospective H-1B cap subject petitions requesting a change of status are not subject to the additional payment.

We will continue to monitor regulatory developments and legal challenges and will provide you with further updates as more information becomes available.

If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, Lin R. Walker, or Stacey A. Simon.