Immigration Developments: EAD Auto-Extensions, H-1B $100K Fee Applicability, and the Gold Card

This LawFlash discusses recent developments in US immigration, including the end of auto-extension of employment authorization documents, clarification of the applicability of H-1B proclamation, and information on the implementation of the Gold Card.

END OF AUTO-EXTENSION OF EADS

On October 29, 2025, US Citizenship and Immigration Services (USCIS) announced that it will be ending the practice of automatically extending most employment authorization documents (EADs) on the basis of a pending renewal application.

In January 2025, a final rule issued by the US Department of Homeland Security (DHS) took effect, which granted an automatic extension of employment authorization upon EAD expiration for a period of up to 540 days, on the basis of a timely filed and pending renewal application. The rationale for that rule was that absent such automatic extension, given unpredictable adjudication delays, renewal EAD applicants and their employers would be at risk of a gap in employment authorization.

The October 29 notice states that, unless otherwise specified in the regulations, by law and/or through a Federal Register notice for Temporary Protected Status (TPS), the 540-day automatic extension period will no longer apply to EAD renewal applications filed on or after October 30, 2025. Thus, individuals who file applications for EAD extensions on or after the effective date of the rule will not be granted the automatic extension of employment authorization, even in light of a timely filed renewal application, and their employment authorization will cease as of the EAD expiration date. These individuals cannot resume employment until the new EAD has been issued.

This policy encompasses nearly all categories of EAD applications that are eligible for an automatic renewal, including those for Adjustment of Status applicants, and asylum applicants.

The DHS has stated that the purpose of the new rule is to ensure that all EAD renewal applicants receive proper screening and vetting before being granted a new period of employment authorization.

This rule will not retroactively impact individuals who have already been granted an automatic extension of their employment authorization for up to 540 days through the filing of a renewal application. These individuals can continue to remain employed while their EAD renewal applications remain in adjudication for up to 540 days beyond the expiration of their EAD.

Due to this new policy, all individuals are strongly urged to file EAD renewal applications as soon as possible. Per current practice, EAD renewal applications can be filed up to 180 days before the expiration.

Note that spouses of E and L nonimmigrant visa holders are employment-authorized incident to their status if they hold a valid Form I-94 (or corresponding approval notice) reflecting their derivative status as a spouse—for example, with the designations E-1S, E-2S, E-3S, or L-2S. A separate Form I-765 application for an EAD is not required for such spouses to work; their continued work authorization depends on maintaining a valid I-94 showing eligible status. Accordingly, if an E or L spouse files a timely application to extend their nonimmigrant status, they are authorized to work only until the expiration of their current I-94. If the I-94 expires while the extension application remains pending, work authorization is not automatically extended.

The new rule does not appear to affect EADs issued under F-1 Optional Practical Training or STEM Optional Practical Training.

CLARIFICATION OF THE H-1B PROCLAMATION REGARDING THE $100,000 FEE

On October 21, 2025, the USCIS issued an updated guidance clarifying which H-1B petitions filed at or after 12:01 am ET on September 21, 2025 are subject to an additional $100,000 fee payment as a condition of eligibility.

What petitions are subject to the $100,000 fee?

• New H-1B petitions filed at or after 12:01 am ET on September 21, 2025, for beneficiaries outside the United States who do not have a valid H-1B visa
• H-1B petitions filed at or after 12:01 am ET on September 21, 2025 requesting consular notification, port of entry notification, or pre-flight inspection, including for an alien in the United States
• Petitions filed at or after 12:01 am ET on September 21, 2025 requesting change of status, amendment, or extension where the USCIS determines that the beneficiary is ineligible (e.g., not in valid status or departs the US before adjudication). In such cases, the $100,000 fee applies and must be paid.

How should the new $100,000 fee be paid?

• Payment must be made prior to filing the H-1B petition at https://www.pay.gov/public/form/start/1772005176 and proof of payment must be submitted with the petition.
• The passport information entered into the payment form must match the passport being used by the beneficiary at US admission.
• The fee will be refunded if the petition is denied.

What petitions and H-1B beneficiaries are exempt from the $100,000 fee?

• H-1B petitions received by the USCIS before 12:01 am ET September 21, 2025
• H-1B change of status, extension, or amendment petition filed on behalf of a beneficiary and such amendment, extension, or change of status is granted
• Beneficiaries who are applying for an H-1B visa on the basis of an H-1B petition approved as a change of status, extension, or amendment
• A beneficiary of an approved H-1B petition who subsequently departs the United States and seeks entry on the basis of a new visa based on the approved H-1B petition
• A beneficiary who is outside the United States but holds a valid unexpired H-1B visa at the time of the filing of another H-1B petition
• Beneficiaries granted National Interest Exception

National Interest Exception

• The DHS secretary may grant exceptions to the $100,000 fee only in extraordinarily rare cases. Requests accompanied with evidence must be submitted to H1BExceptions@hq.dhs.gov prior to petition filing and meet all four of the following criteria:
  • The H-1B beneficiary’s presence is in the United States’ national interest.
  • There is no available US worker who can undertake the role.
  • The H-1B beneficiary does not pose a threat to US security or welfare interests.
  • Requiring the employer to pay the $100,000 fee would significantly undermine US interests.
• Evidence of an approved National Interest Exception must be included with the H-1B filing; otherwise, petitions subject to the payment will be denied.

INFORMATION ON THE IMPLEMENTATION OF THE GOLD CARD

The USCIS has yet to release any implementing regulations regarding eligibility for the “Gold Card” program, the program announced by the White House to allow individuals and corporations to “fast-track” US permanent residency. The executive order dated September 19, 2025 announcing the creation of the program directed the US Departments of State, Homeland Security, and Commerce to take all steps to implement the program within 90 days (i.e., by December 19, 2025).

Several details regarding the contours of the program have emerged. Essentially, a $1 million dollar gift to the US from an individual applicant, or a $2 million dollar gift from a corporation on behalf of an applicant, will be considered evidence that the Gold Card applicant meets the requirements in the Employment-Based First Preference classification, as a foreign national of extraordinary ability, or in the Employment-Based Second Preference classification as a foreign national whose presence in the US is in the country’s national interest.

Applicants will be required to undergo a vetting process and pay a non-refundable fee before making an unrestricted gift to the US government via the US Department of Commerce. Once the applicant’s immigrant visa application is approved, the applicant will be able to complete the green card process either through an adjustment of status filing with the USCIS or consular immigrant visa processing with a US consular post abroad. The “Gold Card” route to permanent residence is expected to reduce available visa numbers in the Employment-Based First and Second Preference classifications.

As discussed above, there is no current process or pipeline for applications for the Gold Card. Individuals may express interest in the Gold Card through the following government website: https://trumpcard.gov/

The website also mentions a “Trump Platinum Card” which states that for a gift of $5 million, a foreign national would be permitted to spend 270 days in the US without paying US tax on non-US income. There are no other details available on the Platinum program. Individuals interested in the Gold Card should be wary of non-governmental websites offering access to the Gold and Platinum Cards.

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