Proposed Rule: DHS Moves to Restrict Discretionary Work Permits
By, Nikki Whetstone, Managing Attorney
The Department of Homeland Security (DHS) has issued a proposed rule severely limiting who qualifies for discretionary Employment Authorization Documents (EADs). Some common discretionary EAD categories include pending Adjustment of Status applicants (c)(9), certain spouses of H-1B (c)(26), and F-1 OPT and STEM OPT (c)(3). The most critical takeaway of this proposal is a near-zero-tolerance policy regarding criminal history. Under the new rules, DHS would explicitly bar discretionary EADs for anyone who:
- Has been arrested, charged, indicted, or convicted of any crime (even if charges were later dropped, dismissed, or resolved via a diversion program).
- Admits to committing a violent crime.
- Is deemed by DHS to be associated with a gang or terrorist organization.
Unless a significant law enforcement or public interest reason is proven, any of these factors will result in an automatic denial.
Additional Anticipated Changes
- Shorter Validity & Constant Biometrics: Discretionary EADs may be limited to a maximum validity of one year. Additionally, applicants must provide fresh biometrics (fingerprints and photos) for every single renewal request.
- No Grace Periods: If the underlying immigration category (such as humanitarian parole or deferred action) is terminated or expires, the associated work permit will automatically become invalid immediately, eliminating any administrative grace periods.
New Hurdle: E-Verify & Renewal Requirements for c(11), c(14), and c(18) EADs
The proposed rule, if implemented, would impose strict mandates affecting businesses and workers looking ahead to renewals for c(11) (public interest parole), c(14) (Non-DACA deferred action), and c(18) (order of supervision) EADs:
- E-Verify Compliance: Businesses employing a foreign national pursuant to one of the above EAD categories must be enrolled in and actively use the E-Verify system. If the employer does not use E-Verify, the employee will be legally blocked from renewing their work permit.
- Mandatory Economic Necessity: Applicants in these categories will be required to submit extensive financial data (such as bank statements and asset evaluations) to prove a strict, immediate economic need to work. If DHS deems an applicant financially self-sufficient, the EAD will be denied.
- The Burden of Discretion: Applicants will bear the absolute burden of proving why DHS should exercise favorable discretion to grant the EAD.
Impact and Timeline
In the proposed rule, DHS confirms that these changes will trigger substantial economic disruption. The agency estimates up to $27.9 billion in direct costs over the next decade due to lost productivity and employment turnover. U.S. employers, foreign national employees, and government agencies will face significant time and cost burdens to process the massive increase in yearly EAD applications, conduct biometrics appointments, and enroll in E-Verify. Currently, only about 29% of U.S. employers are enrolled in E-Verify.
Because this is a proposed rule, it is not yet in effect. Foreign nationals, employers, and industry groups have a critical window to voice their concerns and submit formal feedback. The public comment period is open until August 4, 2026, after which DHS must review the feedback before attempting to finalize the rule.
Are you an employer or a visa holder who will be affected by these E-Verify and criminal history rules? Reach out to GYH for a consultation to discuss your options and ways to prepare.
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*Disclaimer: This information is presented for the purposes of general education and does not constitute legal advice.
