2026 EAD Auto-Extension Rule Finalized: USCIS Deference Policy Change Alert

The Department of Homeland Security has taken two major regulatory actions affecting employment-based immigrants. First, DHS has finalized the EAD (Employment Authorization Document) auto-extension rule, which provides relief to workers whose employment authorization documents are expiring while renewal applications are pending. The finalized auto-extension rule allows eligible EAD holders to continue working beyond their card's expiration date without a gap in employment authorization, provided they have a timely filed renewal application. This is particularly significant for EB-3 applicants with pending Adjustment of Status cases who rely on EADs for work authorization while awaiting their green card. The more consequential proposal is DHS's move to end USCIS deference to previous approval decisions. Under the current deference policy, USCIS generally approves renewal applications for petitions that were previously approved under the same circumstances. Eliminating this policy means USCIS officers could re-adjudicate previously approved petitions from scratch, potentially leading to Requests for Evidence (RFEs) or denials even for renewals. For EB-3 applicants, the proposed end to deference could affect those renewing H-1B or other nonimmigrant status while waiting for their priority date to become current. Employers sponsoring workers through the EB-3 process should consult with immigration counsel to assess any exposure and prepare documentation supporting ongoing eligibility.