The U.S. Department of Homeland Security has issued an interim final rule that ends the automatic extension of Employment Authorization Documents (EADs) for foreign nationals. This includes EB-5 investors and other U.S. visa holders who timely request renewal of their permits.
The automatic extension ended Oct. 30,, which could result in lapses in employment authorization. Authorizations extended before then are not affected.
The DHS says that the modification aims to enhance the vetting and screening of individuals before extending EAD validity, reduce frivolous or fraudulent applications, and allocate resources effectively to support national security and program integrity.
Although this interim final rule is effective immediately, the DHS has opened it for public comment in the Federal Registry until Dec. 1, 2025.
What EB-5 investors must do to renew their EADs from now on
EB-5 attorney Renata Duarte notes that EAD holders planning to transition to EB-5 or other permanent U.S. residence channels must start assessing alternatives.
“For them, the loss of automatic work continuity means any delays in Form I-765 adjudication can create gaps in employment and even in status maintenance for those relying on AOS pending status to stay in the U.S.,” Duarte says.
She adds that once their current EADs expire, work authorization ceases unless the new EAD is approved on time, meaning adjustment of status filers under EB-5 or EB-2/EB-3 visas must budget for potential employment interruptions of several months.
“Those in student or temporary work programs (F-1 OPT, J-1 interns, L-1 spouses) should file in advance EAD renewals the full 180 days before expiry and prepare backup status options such as maintaining H-1B or E-2 status while the EB-5 petition is pending,” she says.
Like other U.S. visa holders who need EADs to work, EB-5 investors must file their renewal applications at least 180 days before their permits expire to maintain their employment eligibility.
“Essentially, this means that anyone with an EAD needs to be filing the renewal on day 180 before expiration. No later,” says Charles Kuck from Kuck Baxter. “Even then, filing a Mandamus action may be necessary to ensure continued employment eligibility.”
WR Immigration told clients that their employers must reverify their employees’ authorization before the EAD expires to avoid penalties.
“It is even more essential that employers track the expiration of work authorization for noncitizens and take appropriate employment action if an individual is unable to provide evidence of continued work authorization.”
U.S. immigration community cautions against potential delays
DHS has acknowledged that delaying this process increases the risk of a lapse in employment authorization for U.S. visa holders renewing their EADs.
Immigration professionals and organizations caution about potential delays caused by the rule per se, given USCIS’s current backlog in processing U.S. visa applications.
The American Immigration Council said in a public statement: “That means thousands of legally authorized workers may lose jobs as USCIS takes months to process renewals. Employers will lose staff. Families will lose income. And our already-stalled economy will take another hit.”
American Immigration Lawyers Association’s Executive Director Ben Johnson said in a public statement that “because USCIS is not properly funded or staffed, people who file applications to renew their valid work permits regularly face extended months-long delays for their applications to be approved.”
Jackson Lewis law firm said in a notice to clients: “Due to the unpredictable fluctuations in EAD processing times and the limited availability of premium processing or expedited review in most employment authorization categories, temporary lapses in employment authorization may occur, even for foreign nationals who file an EAD renewal application at the earliest possible instance.”
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