Two federal changes could leave some employees unable to work or without lawful status on short notice. First, most timely filed Employment Authorization Document (EAD/work permit) renewal applications no longer automatically extend work authorization while a decision is pending. Second, the Department of Homeland Security (DHS) has proposed ending the 60-day grace period that currently protects certain sponsored workers after their employment ends. Both changes hinge on specific dates, so the safest approach is to identify each affected employee’s deadlines now and distinguish between two questions: Is the employee authorized to work? And is the employee permitted to remain in the United States?
How Do Changes Affect Your Business?
This update is relevant if your business:
- Employs workers who rely on an EAD to show they can work, such as H-4 spouses or employees with a pending asylum or green card application (see “The End of Automatic EAD Extensions” section below).
- Sponsors H-1B, H-1B1, L-1, E-1, E-2, E-3, O-1, or TN workers (see “The 240-Day Rule for Timely Filed Extensions” and “Proposed Elimination of the 60-Day Grace Period” sections below).
- Is planning layoffs, terminations, or a restructuring that may affect sponsored workers (see “Proposed Elimination of the 60-Day Grace Period” section below); or
- Employs Deferred Action for Childhood Arrivals (DACA) recipients (see “Special Considerations for DACA Renewals” section below).
The End of Automatic EAD Extensions
Why it matters: Previously, many employees could continue working for up to 540 days after their EAD expired while a timely filed renewal was pending. A renewal is timely if filed before the EAD expires. For renewals filed on or after October 30, 2025, this protection no longer applies. Employees whose work authorization depends on an EAD may need to stop working the day after it expires, even if their renewal is pending.
What changed: On October 14, 2026, DHS finalized, without change, its October 30, 2025, interim final rule ending automatic EAD extensions for certain renewal applicants. The date the employee filed the renewal now controls:
- Filed before October 30, 2025: a qualifying EAD renewal that was properly and timely filed may keep an automatic extension of up to 540 days, even if the card expires on or after that date. Earlier termination and category-specific limits apply, including applicable Form I-94 (arrival/departure record) limits for dependent spouses and separate Temporary Protected Status (TPS) limits.
- Filed on or after October 30, 2025: no automatic extension, except where otherwise provided by law or an applicable TPS Federal Register notice. Separate F-1 science, technology, engineering, and mathematics (STEM) Optional Practical Training (OPT) and cap-gap protections remain available when their own requirements are met.
Who can keep working, and who must stop: An expired card does not always end work authorization. Refugees, asylees, and qualifying E and L spouses may remain authorized while their status continues, but you must confirm other acceptable Form I-9 documentation. By contrast, employees whose only basis to work is an EAD tied to a pending asylum application (C08), a pending adjustment of status (green card) application (C09), or qualifying H-4 spouse status (C26) must stop working when that authorization expires, unless an applicable extension or separate authorization exists. For each of these employees, check the received date on the Form I-797C receipt notice, the eligibility category, and any exception. A pending renewal alone is not enough. Federal regulations require employers to reverify on Form I-9 no later than the date an employee’s work authorization expires, and a receipt notice for a renewal filed on or after October 30, 2025, does not postpone that date.
When to file renewals: U.S. Citizenship and Immigration Services (USCIS) generally recommends not filing EAD renewals more than 180 days before expiration, but the final rule confirms there is no general prohibition on filing earlier. Filing earlier can reduce the risk of a gap, with one trade-off: USCIS does not postdate a renewal EAD to begin when the existing card expires, so early approval may shorten the combined validity period. Category-specific requirements still apply.
The 240-Day Rule for Timely Filed Extensions
Why it matters: If you file a sponsored worker’s extension on time, that worker can generally keep working for you while it is pending, but only within the limits below.
The separate 240-day rule remains available to eligible workers in covered classifications, including H-1B, L-1, E, O, and TN, when a qualifying extension-of-stay petition is timely filed. Under 8 C.F.R. §274a.12(b)(20), the worker may continue working for the same employer for up to 240 days from the expiration of the authorized stay (generally the date shown on Form I-94), not from the filing date. Authorization ends upon notification of a denial during that period, and a pending petition does not authorize work beyond 240 days. The rule does not cover new employment or an H-4 spouse’s C26 EAD renewal.
Proposed Elimination of the 60-Day Grace Period
Why it matters: If this proposal is finalized, a sponsored worker whose job ends could be out of status the next day. Layoffs, terminations, and resignations involving these workers would need more advance planning, because the up to 60-day window to line up a new employer or other options would no longer exist.
Today’s rule: The current grace period covers E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN workers and their dependents, and it remains in force until a final rule takes effect. Federal rules require employers to reverify on Form I-9 no later than the date an employee’s work authorization expires, and a receipt notice for a renewal filed on or after October 30, 2025, does not postpone that date. or for up to 60 consecutive days or the remaining authorized validity period of the applicant’s I-94, whichever is shorter, once per admission validity period. DHS may shorten or eliminate the period as a matter of discretion, and the grace period itself does not authorize work.
What DHS proposed: DHS’s September 11, 2026, proposal would eliminate this discretionary grace period. If finalized as proposed, affected workers and dependents would fail to maintain status beginning the day after the principal’s qualifying employment ends. Separate up-to-10-day admission periods would not replace this protection after a mid-validity-period termination. The proposal specifies no implementation date or transition protection for a grace period already underway. Employers that wish to comment may do so through the Federal eRulemaking Portal (regulations.gov) by November 10, 2026 (DHS Docket No. USCIS-2026-0364).
Hiring a sponsored worker who is changing jobs: Eligible H-1B workers may use portability to begin new employment upon timely filing of a qualifying, nonfrivolous petition or as of the requested start date, whichever is later. Workers in the other covered classifications must wait for approval before starting new employment. Permission to remain in the U.S. while a filing is pending is not permission to work, however, and an unexpired I-94 alone does not resolve a failure to maintain status after employment ends.
When Should Employers File Extension Petitions?
Why it matters: Timing issues cut both ways. Some petitions cannot be filed too far in advance, and a late filing can interrupt a worker’s authorization to be employed.
Begin preparing before the filing window opens. Form I-129 is the petition employers file to extend a sponsored worker’s stay. Its instructions generally use a six-month advance-filing benchmark measured from the scheduled employment start date, but classification-specific rules differ. For example, H-1B regulations bar filing earlier than six months before the actual need, and O regulations set a one-year outer limit. Work with counsel to reconcile the regulation, the current instructions, and the requested start date rather than applying a uniform six-month rule.
| Filing type | Quick timing guide |
| H extension petition | No earlier than six months before the actual need for services. |
| L, E, or TN extension petition | Form I-129 instructions generally use six months before the scheduled start date; confirm classification-specific requirements. |
| O petition | Regulatory outer limit: one year before actual need. Reconcile with the instructions’ general six-month benchmark. |
| EAD renewal | Generally, plan around 180 days before expiration; earlier filing may be permitted, but renewals are not postdated. Check category-specific rules. |
| DACA renewal | USCIS recommends 150 to 120 days before the DACA approval expires, but this time frame is insufficient in light of current USCIS processing times; filing does not extend work authorization. |
Build in processing time: Check current processing times and premium-processing (paid expedited service) eligibility; published times are reference points, not guarantees. Premium processing for Form I-129 does not automatically cover a dependent’s Form I-539 (extension of status) or Form I-765 (work permit), and the EAD final rule announced no new premium-processing option for affected renewals.
Special Considerations for DACA Renewals
Why it matters: A DACA recipient’s work authorization does not carry over while a renewal is pending, so a late filing can mean a gap in employment.
DACA recipients renew their status and work authorization via filing Forms I-821D and I-765, respectively. The C33 EAD category was never eligible for the general 540-day automatic extension, so a timely renewal alone does not extend work authorization. A pending DACA request does not itself authorize employment, and C33 work authorization is issued only for the period of the associated DACA grant.
USCIS recommends filing 150 to 120 days before the DACA approval notice expires and cautions that filing more than 150 days before expiration will not produce a faster decision. Track both the DACA approval and EAD expiration dates; even timely filing does not guarantee uninterrupted authorization.
Practical Steps Employers Can Take Now
- Identify who is affected. List employees whose work authorization depends on an EAD, a pending extension, or sponsored status, and note each person’s category and filing dates.
- Track deadlines. Maintain a calendar of EAD, I-94, and approval-notice expiration dates, with early reminders and a named person responsible for follow-up.
- Prepare early. Collect supporting documents before the filing window opens and review processing options with counsel.
- Verify the work authorization basis. Before current work authorization expires, confirm whether any extension applies, identify acceptable Form I-9 documentation, and complete the required reverification timely.
- Plan for workforce changes. Consult immigration counsel before terminating or restructuring a sponsored employee’s role to assess status consequences and available options.
The Bottom Line
For each affected employee, identify which protection applies and do not assume that a pending filing permits continued work authorization. With automatic EAD extensions narrowed and the 60-day grace period under review, early coordination with immigration counsel can help you anticipate potential work authorization gaps.
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About the Authors:
Alicia Rodriguez is an associate in Dickinson Wright’s Ann Arbor office, where she focuses on business immigration law. Before attending law school, she spent more than five years working as a business immigration paralegal, giving her practical insight into the immigration process. Alicia has handled a variety of matters, including PERM Labor Certifications, immigrant visa petitions, and nonimmigrant cases involving L-1, H, and E visas. Her experience allows her to guide clients through the complexities of business immigration with a grounded, informed approach.
Kathleen Campbell Walker is a Member of Dickinson Wright and Chair of the firm’s Immigration Practice Group, based in the El Paso and Denver offices. She is board certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. A former national president and general counsel of the American Immigration Lawyers Association (AILA), she received the AILA Founder’s Award (now the Robert E. Juceam Award) in 2014, recognizing the individual or entity with the most significant impact on immigration law or policy during the preceding period. She has also testified multiple times before Congress on immigration and border security matters. She can be reached at KWalker@dickinsonwright.com.