Two developments require immediate attention from employers and foreign workers: DHS has finalized its removal of the automatic extension for most EAD renewals, and USCIS data show a sharp increase in denials for employment authorization sought by adjustment-of-status applicants.
Important date and scope: The final rule was scheduled for publication in the Federal Register on October 14, 2026. It finalizes the interim final rule that took effect on October 30, 2025. The 2025 rule already ended most automatic extensions for Form I-765 renewal applications filed on or after that date. The October 2026 rule does not create a new cutoff or restore extensions for later filings. It makes the existing policy final without changes. View the Federal Register public-inspection document.
The practical result remains significant: a timely EAD renewal filing generally does not authorize continued employment after the existing card expires. Employers and workers should plan for potential gaps, review Form I-9 deadlines, and assess each case individually.
What the final rule changes, and what it does not
DHS’s final rule adopts the 2025 interim rule. DHS states that more frequent vetting and a decision on continued eligibility should occur before renewed employment authorization is granted.
Under the rule, most Form I-765 renewal applications filed on or after October 30, 2025, do not automatically extend the EAD or underlying employment authorization. This applies across affected categories, including pending asylum applicants and certain H-4 spouses of H-1B workers. The rule preserves qualifying automatic extensions triggered by applications filed before October 30, 2025, as well as extensions provided by statute or an applicable Federal Register notice, including certain Temporary Protected Status provisions.
The prior 540-day extension policy applied to qualifying renewal applications filed before the cutoff. It does not apply to most later applications merely because they were timely filed. The 2025 interim final rule explains the transition and exceptions.
A September 2026 California court order granted preliminary relief to seven named H-4 plaintiffs, finding that DHS had likely violated the Administrative Procedure Act in issuing the interim rule. The court expressly limited the injunction to those plaintiffs; it did not issue a nationwide order. Other H-4 EAD holders should not assume the ruling extends their work authorization. Read the court’s order.
The 44% figure concerns a specific EAD category
USCIS’s FY2026 third-quarter data cover April 1 through June 30, 2026. For adjustment-of-status EAD applications, USCIS reported 35,767 denials and 46,405 approvals. That is a denial share of about 44% among those approvals and denials. The category had 671,362 applications pending at quarter’s end. The percentage is not the denial rate for every Form I-765 case.
The measure is calculated as denials divided by approvals plus denials. It is not the percentage of applications received that quarter that were denied. USCIS notes that decisions in a quarter may involve applications submitted earlier.
Other reported denial shares also rose from earlier FY2026 levels:
- Form I-129 nonimmigrant worker petitions: about 22%, compared with about 13%.
- Form I-130 immediate-relative petitions: about 17%, compared with about 10%.
- Form I-140 immigrant worker petitions: about 16%, compared with about 13%.
- Form N-400 naturalization applications: about 18% to 19%, compared with about 13%.
- Family-based Form I-485 adjustment applications: about 18%, compared with about 13%.
- Employment-based Form I-485 denials remained near 7%.
DACA EAD decisions moved in the opposite direction: USCIS reported 76,053 approvals and 482 denials for the quarter. The figures are category-specific and do not predict the outcome of an individual case. See the USCIS FY2026 Q3 all-forms data and Form I-765 category data.
A 44% denial share for adjustment-based EAD decisions does not mean that an underlying Form I-485 green-card application was denied. Form I-765 and Form I-485 are separate applications with separate decisions. Similarly, the overall Form I-129 figure is not an H-1B-specific denial rate and does not establish the outcome of any particular H-1B visa 2026 filing.
What foreign workers should do now
Workers whose employment depends on an EAD should identify the expiration date and applicable category code now. USCIS generally recommends filing an EAD renewal as early as 180 days before expiration. The applicable filing window and requirements can depend on the category and underlying status. Review the USCIS I-9 Central guidance on automatic extensions.
Before filing Form I-765:
- Confirm the correct eligibility category and current form instructions.
- File as early as USCIS permits and keep the receipt notice and a complete copy of the application.
- Monitor case status and posted processing times.
- Ask an immigration lawyer to assess whether another independent basis for employment authorization applies.
- Do not work after authorization expires unless a specific legal provision or separate status authorizes continued employment.
A pending EAD renewal, by itself, generally does not permit work under the post-October 30, 2025 rule. Unauthorized employment may affect future immigration benefits, including adjustment of status, subject to applicable statutory exceptions.
Premium processing is not a general solution for EAD renewals. Employers may ask counsel whether premium processing is available for an eligible underlying petition, such as certain Form I-129 filings. Expediting a related petition does not automatically expedite a Form I-765 renewal.
What employers and HR teams should do
The rule places greater importance on accurate expiration tracking and case-by-case review. Employers should not treat a Form I-765 receipt notice as proof of continued work authorization unless the employee qualifies for an extension under a surviving provision.
HR teams should take these steps:
- Audit EAD expiration dates and Form I-9 reverification deadlines. Identify affected employees and upcoming expirations.
- Verify whether an exception applies. Confirm the filing date, EAD category, receipt notice, and any applicable statutory or Federal Register extension. Certain pre-cutoff filings and TPS-related cases may be treated differently.
- Set renewal reminders. Prompt employees to seek case-specific guidance and file at the earliest permitted time.
- Prepare for possible employment gaps. If authorization expires and the employee cannot present other acceptable evidence of current work authorization, the employer must not continue employing the individual during the gap.
- Document Form I-9 actions consistently. Reverify employment authorization when required. Apply the same process across employees and avoid discrimination based on citizenship status or national origin.
A lapse in authorization can require an employee to stop working and can create staffing and continuity issues for the employer. Failure to complete Form I-9 reverification correctly can create compliance exposure. Employers should not rely on assumptions about pending renewals, court orders that apply only to specific plaintiffs, or general descriptions of another worker’s case. USCIS provides current employer instructions in its M-274 Handbook.
Plan for work authorization, not just a filing receipt
The final rule formalizes a policy already in effect for most renewal applications filed on or after October 30, 2025. Combined with the increase in adjustment-based I-765 denials, it calls for early review and careful documentation. A filing receipt does not guarantee approval or continued work authorization.
Blasingame Law LLC advises employers, HR teams, and foreign workers on EAD renewal planning, work visa for foreign employees, and workforce compliance. The firm brings more than thirty years of immigration law experience and provides personalized guidance for complex, time-sensitive matters. Learn more about business immigration and employer compliance services or contact Blasingame Law LLC to discuss EAD renewal planning or an employer compliance audit.
This article provides general information and is not legal advice. The effect of a rule, court order, or filing deadline depends on the facts and documentation of each case.
