The potential Congressional repeal of a Biden administration rule extending work authorisations for foreign workers risks heaping more pressure on American businesses.

On 30 January, Republican Senators John Kennedy and Rick Scott introduced a joint resolution of disapproval under the Congressional Review Act (CRA) for a Biden rule that automatically extended certain foreign workers’ employment authorisation.

The Department of Homeland Security (DHS) finalised the rule in December 2024 that permanently increased the period for renewing employment authorisation documents (EADs) from 180 days to 540 days. 

The same rule in the waning days of the Biden era brought changes to the H-1B system that promised benefits for both employers and skilled temporary foreign workers.

Since retaking office, President Donald Trump has issued a flurry of executive orders as he attempts to reform America’s immigration system. Opposition to Biden’s EAD extension is therefore no surprise from the president’s allies in the Senate.

“The dangerous rule automatically extended work permits for immigrants, giving them more time to avoid reporting to US officials hampers the Trump administration’s efforts to enforce our immigration laws and keep Americans safe,” said Kennedy, who is a member of the Senate Judiciary Committee and senator from Louisiana.

Biden’s rule broadly applies to refugees, green card holders, foreigners with temporary protected status, spouses of H-1B visa holders, and those who have filed for deportation suspensions.

“The Biden-Harris administration worked for four years straight to dismantle our nation’s immigration system and open our southern border, allowing millions of illegal aliens to come across unvetted and unchecked,” added Scott, the senator from Florida. 

“Then, in a last-minute move, former President Biden passed a ridiculous rule that allows illegal aliens to keep jobs in the United States for over a year without authorisation.

“That’s insane, and it undermines President Trump’s mandate and efforts to secure the border and put Americans’ interests first. I’m proud to work with my colleagues to reverse this dangerous rule,” he said.

So, with anti-immigration rhetoric rife, how likely is it that Congress will undo Biden's rule?

According to BakerHostetler’s David Serwer, Congress has for decades found it difficult to agree on immigration-related legislation.

“But with the new administration and consolidation of power across the executive and legislative branches of government, it is quite possible that Kennedy’s resolution could be considered,” he says.

Jackson Lewis’ Minnie Fu adds: “If the CRA passes, the shorter EAD validity period will likely lead to renewal applications being filed more frequently, thereby creating additional burdens on the government agencies that could lead to even more significant backlogs on overall immigration processing. 

“It could also lead to uncertainty, additional financial burden and employment gaps for US employers and employees who rely on EAD to work.”

EAD automatic extensions were created to prevent applicants from losing their work authorisation due to delays in processing. The extension period typically ends once the US Citizenship and Immigration Services approves or denies the application. 

“If this automatic extension period is reversed, US employers may have to terminate EAD holders who filed for an extension but whose requests remain unadjudicated for more than 180 days after their previous EAD expired,” Serwer warns.

During the covid-19 pandemic, processing times for many EAD types increased significantly, with some taking more than a year, causing gaps in work authorisation. 

“If the extension period is reduced back to 180 days, EAD holders might worry again about whether processing delays will affect their ability to continue working without in the US without interruption,” Serwer says.

Employers can encourage employees to file EAD extension applications as early as possible to minimise the likelihood that an application might remain pending long enough to exceed the automatic extension period.

Fu says the reversal of the EAD can only serve its purpose without negatively impacting employers’ business operations, if relevant government agencies can complete timely reviews and adjudications of all cases filed.

“Employers needing to hire talent through the EAD process are likely to be caught between a rock and a hard place,” she says.

“On one hand, they can face immigration-related discrimination issues if they do not hire workers with valid, but short-term, work authorisation. 

“[Alternatively], when companies hire EAD holders, they may face potential work disruption if workers with EAD are not able to receive timely renewed authorisation.”