United States | DHS finalizes EAD auto-extension rule, proposes end to USCIS deference to previous approvals

Today, the Department of Homeland Security published three immigration rules impacting employment authorization documents (EADs), U.S. Citizenship and Immigration Services adjudications of nonimmigrant worker petitions and procedures for terminating refugee status.

Key takeaways:

Final rule on EAD automatic extensions: DHS finalized its October 2025 interim final rule (IFR) “that amended DHS regulations to end the practice of automatically extending the validity of employment authorization documents (Forms I-766 or EADs)” for foreign nationals who have timely filed an application to renew their EAD in certain employment authorization categories on or after Oct. 30, 2025. The rule adopts the IFR as final without any changes and means the up-to-540-day automatic extension period only applies to renewal EAD applications filed before Oct. 30, 2025.

The final rule also states that “the validity period of an expired or expiring Employment Authorization Document and/or employment authorization will not be automatically extended by a renewal EAD application filed on or after October 30, 2025,” unless an exception is provided by federal regulation or a Federal Register notice for Temporary Protected Status-related employment documentation. The final rule is effective upon publication in the Federal Register on Oct. 14, 2026.

NPRM on deference to prior USCIS approvals: DHS has issued a notice of proposed rulemaking (NPRM) proposing to change its regulations “to remove 8 CFR 214.1(c)(5), which generally provides that USCIS gives deference to a prior approval involving the same facts when adjudicating a request to extend a petition” for a foreign national’s employment or stay. The proposal itself does not make immediate changes. If finalized, officers could consider prior approvals but would no longer be required to start from a position of deference, meaning petitioners would need to establish continued eligibility based on the current record. Comments will be accepted for 30 days after publication on Oct. 14, 2026.

Interim final rule on refugee status termination: According to DHS, the IFR amends certain DHS regulations to “expedite termination of refugee status” and will reduce the response period of a notice of intent to terminate from 30 to 10 days when USCIS determines an individual granted refugee status did not meet the refugee definition at the time of admission. The IFR takes effect upon publication on Oct. 14, 2026, with comments accepted for 30 days.

Additional information: The EAD rule is final, while the change to USCIS deference remains a proposal and does not yet alter current adjudication requirements. The refugee rule takes immediate effect on Oct. 14, 2026.

The proposed rule to eliminate the deference policy is in the public comment period, a preliminary rulemaking stage, and is not currently in effect. After the public comment period ends, DHS will be required to review and consider the feedback it receives in formulating a final regulation. BAL is closely monitoring the progress of this regulation and will provide updates on developments.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2026 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.