US Scraps Automatic 540-Day Work Permit Extension, Impacting H-1B Spouses and Other Foreign Workers

The United States Citizenship and Immigration Services (USCIS) has formalized the elimination of the automatic 540-day extension for work permits, a decision announced on Wednesday through a final rule. This action codifies a policy initially introduced in an interim rule on October 30 last year. The development, described by news agency PTI as a "fresh setback," could potentially leave thousands of foreign workers, including Indians, unable to continue employment while their renewal applications are pending. Specifically, H-4 spouses of H-1B visa holders who rely on Employment Authorisation Documents (EADs) to work in the US are among those affected; if their existing permits expire before USCIS approves renewals, they may be required to stop working until new authorization is issued.

The automatic extension was initially introduced in May 2022 under former US President Joe Biden, intended to address renewal backlogs and prevent workers from losing employment authorization due to processing delays. The provision was temporarily restored in April 2024 before being extended indefinitely in December that same year. Under the latest rule, automatic extensions will no longer apply to several categories of applicants. These include individuals seeking adjustment of status, H-4 spouses, asylum applicants, refugees, asylees, and beneficiaries of Temporary Protected Status (TPS). However, the change does not affect all foreign workers equally. F-1 students seeking a Science, Technology, Engineering, and Mathematics (STEM) extension of their employment authorization will continue to receive a 180-day automatic extension, provided they submit their applications on time. Additionally, spouses of L and E visa holders will retain their authorization to work based on their immigration status and will not need an EAD.

In a separate move, the Trump administration has proposed changes to the visa renewal process that could make extensions more challenging for foreign professionals, including H-1B workers. This proposal seeks to end the longstanding practice of deferring to previous approvals while reviewing extension petitions for certain non-immigrant workers. If implemented, the framework would require USCIS officers to evaluate each application on its own merits instead of relying on earlier decisions. Consequently, applicants could face closer scrutiny even if their visas had previously been approved by USCIS. The proposed changes could also lead to more Requests for Evidence (RFEs), additional documentation requirements, longer processing periods, and increased legal and administrative expenses. Employers may have to submit extension petitions with the same level of detail as initial applications, providing complete documentation of a worker’s eligibility despite earlier approvals. The Department of Homeland Security has invited public comments on this proposal until November 13. Unlike the work permit rule, these proposed changes to visa extensions have not been finalized and remain a separate measure.

Ajay Jain Bhutoria, a former White House adviser and immigration attorney, has criticized the administration’s decision to formalize the elimination of the automatic 540-day work permit extension. Bhutoria stated, “I strongly condemn the Trump administration’s decision to codify and finalise the elimination of the 540-day automatic work permit extension.” He added that this policy change would "adversely affect legal immigrants and families who depend on employment authorisation to support themselves in the US," calling it a "regressive policy shift" and a "devastating blow to hardworking legal immigrants, H-4 spouses, healthcare workers, and families who rely on employment authorisation documents to build their lives and contribute to America’s prosperity.” The two measures discussed, the scrapped extension and the proposed stricter scrutiny, could collectively add to the uncertainty faced by foreign professionals and their families in the US, particularly those who depend on timely renewals to maintain their employment and immigration status.

What to watch: Monitor the public comment period closure on November 13 for proposed visa extension changes.

Editor's note: The draft comprehensively covers the regulatory changes and the industry reactions using only the provided source text.