DHS Proposes Further Work Authorization Restrictions for Foreign-Born Staff

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If finalized without modification, the proposed rule would likely create new uncertainty at multiple points in the employment cycle-at the hiring stage, at renewal of work authorization documents, and in the event of an unanticipated status change.

A Department of Homeland Security (DHS) proposed rule, "Clarification of Discretionary Employment Authorization for Certain Aliens," would impose new conditions and restrictions on three categories of employment authorization used by many immigrants currently working legally in the United States.

The proposal, published on June 5, 2026, is still in the rulemaking stage; the public comment period closes August 4, 2026.

DHS estimates the rule's 10-year economic impact at between $9.1 billion and $27.9 billion. This is the combined expense of rule implementation (as proposed) as well as lost productivity.

Who Would Be Affected

The rule targets three Employment Authorization Document (EAD) categories:

• Parole-based work permits (category (c)(11)), used by workers who entered the United States through various humanitarian parole programs
• Deferred action-based work permits (category (c)(14)), used by workers with temporary protection from removal;
• Order of Supervision work permits (category (c)(18)), used by workers with final removal orders whose home countries will not accept their return.

DHS's own figures indicate these three categories generated nearly 978,000 EAD applications in fiscal year 2024 alone.

Of note, workers holding Deferred Action for Childhood Arrivals (DACA) based employment authorization are largely shielded from the core eligibility changes in this proposal. However, several of the key provisions discussed below would introduce new requirements for all employees (including DACA recipients where indicated) and increase compliance obligations for employers.

Key Provisions

• A new economic necessity test would require workers in all three categories to demonstrate financial need before receiving or renewing a work permit.
• A biometric requirement would require every worker applying for a work permit in these categories to submit fingerprints and photographs for Federal Bureau of Investigation (FBI) criminal history checks before receiving authorization (applies to DACA).
• A broad criminal history bar would disqualify applicants based on any arrest, charge, indictment, or conviction, regardless of disposition, including sealed or expunged records (applies to DACA).
• An E-Verify enrollment requirement would apply to employers seeking to retain workers in these categories beyond an initial EAD period.
• Work permit validity would be capped at one year, replacing longer periods that have provided more staffing stability.
• Work authorization will be automatically terminated upon revocation of underlying immigration status or entry of a removal order. The result: employment authorization could end without a separate process or advance notice to employers.

What This Could Mean in Practice

The combined effect of these provisions, if finalized without modification, would likely create new uncertainty at multiple points in the employment cycle-at the hiring stage, at renewal of work authorization documents, and in the event of an unanticipated status change. Workers who are currently authorized and reliably employed could face renewed scrutiny based on factors unrelated to their job performance. Annual renewal cycles, combined with ongoing U.S. Citizenship and Immigration Services (USCIS) processing delays, introduce the possibility of authorization gaps that leave both employers and workers in a difficult position. The E-Verify requirement would add a compliance layer for members who do not use the system at this time.

A Note on the Broader Landscape

On the same day DHS published this proposal, a federal district court in Rhode Island issued a ruling in Dorcas International Institute of Rhode Island v. USCIS vacating four USCIS policies that had paused immigration benefit processing for nationals of 39 countries.

The court found those policies unlawful under the Administrative Procedure Act, concluding that USCIS had exceeded its statutory authority by imposing categorical holds without individualized review. That ruling is on appeal. Its reasoning is likely to inform advocacy arguments against elements of the current proposal as well.

Next Steps for Members

As with all changes to immigration system potentially affecting employers and/or employees, LeadingAge recommends members review their employee records to determine if any staff may be affected should this rule go into effect. LeadingAge will continue tracking this rulemaking and will provide updates as the process develops. Members who would like to share their workforce findings (or who have questions) are encouraged to do so by contacting Shane Myers, Associate Director for Immigration Advancement.