Labor & Employment Law Daily Wrap Up, IMMIGRATION—D. Mass.: One Big Beautiful Bill’s employment authorization limits allowed to stand, (Aug 7, 2026)

By Todd Harrison, J.D.

There was good cause not to undertake notice and comment with respect to the employment limits, given that the regulations merely restate the statute they implement.

Partially rejecting a motion to stay agency action under the APA as it relates to employment authorization limits outlined in the One Big Beautiful Bill Act, a federal district court in Massachusetts determined that a notice and comment period was unnecessary, the limits were not impermissibly retroactive, and the possibility that implementation of the legislation will create a gap in employment authorization was insufficient to find the policy itself unlawful. However, the court did grant the motion insofar as it challenged the implementation of consequences for failure to pay the annual asylum fee (Venezuelan Association of Massachusetts v. United States Citizenship and Immigration Services, No. 26-13038-NMG (D. Mass. Aug. 5, 2026)).

On July 4, 2025, the One Big Beautiful Act (the Act) was signed into law. The Act addresses several aspects of immigration law, including modifying the existing frameworks for temporary protected status (TPS) employment authorization documents (EADs) and asylum applications.

Legal challenge. The plaintiffs in this case challenged three USCIS policies purporting to implement those statutory provisions: (1) a one-year cap on the issuance or renewal of TPS-based work authorization, referred to as the cap policy; (2) a March 2026 update to the USCIS website explaining that the cap policy will apply to previously-issued EAD extensions; and (3) portions of the April 29, 2026, interim final rule pertaining to the cap policy and asylum applications. The plaintiffs generally challenged these policies as procedurally invalid and otherwise unlawful.

TPS holders. Under the TPS program, a foreign national may live and work in the United States if and while their home country is designated unsafe by the U.S. government. Foreign nationals from those countries are entitled to apply for EADs.

Before the promulgation of the challenged policies, EADs were typically issued for the duration of a country’s TPS designation. Upon an extension of that designation, TPS holders who filed timely EAD renewal applications were granted an automatic 540-day extension of their expiring EADs to prevent gaps in work authorization.

The Act limits the duration that any EAD may be valid, mandating that an EAD, or the renewal or extension thereof, shall be valid for a period of one year or for the duration of TPS, whichever is shorter.

Pursuant to this cap policy, any 540-day extensions issued before July 21, 2025, would be valid no later than July 22, 2026, regardless of when those extensions would have otherwise expired.

Asylum applicants. Noncitizens present in the United States may apply for asylum. Most asylum applicants are eligible to apply for employment authorization after their asylum application has been accepted for filing and pending for 150 days. Historically, USCIS was required to adjudicate that initial work permit application within 30 days of filing.

The Act changes that framework, requiring applicants to pay an annual asylum fee (AAF) for every year that an asylum application remains pending. The April 2026 interim final rule reiterates that mandate and provides that failure to pay the AAF within 30 days may result in rejection of the pending application and, in some cases, initiation of removal proceedings. Further, the interim final rule removed the requirement that USCIS process initial asylum-based work authorizations within 30 days of filing.

Likelihood of success. Having determined that the plaintiffs had standing to bring this action, the court turned to their motion for a stay, noting that the legal standard for such a motion is identical to that of a preliminary injunction. Thus, the plaintiffs were first required to show a likelihood of success on the merits of their claims. The court addressed each claim in turn, beginning with the cap policy.

Notice and comment. First, the plaintiffs argued that the cap policy at issue was procedurally invalid because the government did not undertake notice and comment, contending that the cited exceptions, good cause and the exception for rules of agency organization, procedure or practice, did not apply. The court did not agree.

There was good cause not to undertake notice and comment with respect to the cap policy, explained the court. When a regulation merely restates the statute they implement, notice-and-comment procedures are unnecessary. Here, the language implementing the cap policy in both the July 2025 Federal Register Notice and the April 2026 interim final rule was virtually identical to the language found in the Act.

“Because the agency had no choice but to effectuate the command of the statute, submission of the rule for public comment was not necessary,” said the court. Thus, the plaintiffs failed to demonstrate a likelihood of success on this claim.

Retroactivity. Next, the plaintiffs asserted that the cap policy was impermissibly retroactive because it limits the duration of employment authorizations for TPS holders who applied for authorizations prior to July 4, 2025. The court was again unmoved, finding that although the Act does not clearly mandate retroactive application of the cap policy, application of the cap policy to those TPS holders who applied for EADS or EAD renewals before July 4, 2025, was not impermissibly retroactive.

The cap policy does not revoke a substantive right to discretionary relief outright, observed the court. Rather, it limits the maximum duration for which an individual may enjoy that right. “Applicants for an EAD have no legitimate expectation in the duration of such an authorization,” said the court.

Similarly, continued the court, the application of the cap policy to TPS holders who had previously been issued 540-day EAD extensions was not impermissibly retroactive. The language of the Act requires that all EADs “shall be valid for a period of 1 year.” By mandating that no previously issued extension may last longer than one year from the date of the July 2025 Federal Register Notice, the USCIS “has simply confirmed the intent of the statute,” said the court.

Conflict. Finally, the plaintiffs alleged that the cap policy was unlawful because it conflicts with existing statutory requirements that mandate work authorization be “effective throughout the period the alien is in temporary protected status.” 8 U.S.C. § 1254a(a)(2). According to the plaintiffs, the challenged policies may result in gaps in employment authorization if, for example, an EAD expires before a TPS designation and the USCIS does not timely grant a renewal application. The government resolves this apparent conflict by interpreting the TPS statute as requiring a TPS holder to maintain eligibility for work authorization throughout their status, while the Act defines the maximum duration for each period of authorization.

Although the court noted that it was unconvinced of the government’s interpretation of the TPS statute, it nonetheless concluded that the plaintiffs had failed to show the cap policy was unlawful on these grounds.

The possibility that implementation of the Act would create a gap in employment authorization was insufficient to find the policy itself unlawful, explained the court. The government could, for example, issue one-year automatic extensions of expiring EADs to prevent such gaps.

“A failure to comply with the TPS statute may result in independent liability but such failure would be independent of the mere implementation of the Cap Policy as required by H.R.1.,” said the court, concluding the plaintiffs failed to show a likelihood of success on the merits as to the cap policy.

AAF. Turning to the plaintiffs’ contention that the April 2026 interim final rule was procedurally invalid with respect to the consequences for failure to pay the AAF and the removal of the 30-day processing window, they argued that the potential consequences—rejection of asylum applications and the initiation of removal proceedings—were not authorized by the Act and implicated individuals’ substantive rights.

In response, the government reiterated its argument with respect to the exceptions for good cause and rules of agency procedure, explaining that, without consequences, the impact of failing to pay a fee would be rendered a nullity. It further argued that long-standing practice and other regulations supported the rejection of applications for failure to pay a filing fee. The court was not convinced.

While the court was persuaded that the failure to implement any consequences for not paying the AAF may indeed render the fee a nullity, it found that these specific consequences were not required by the statute. Further, such regulations could not properly be considered rules of agency organization, procedure or practice. The rejection of an application for asylum is an agency action affecting the applicant’s eligibility for immigration benefits and legal presence in the United States, explained the court.

“Those consequences implicate the substantive rights of those applicants, not rules of procedure,” said the court.

Processing window. As to the removal of the 30-day processing window, however, the court found that this was properly characterized as a rule of agency procedure. Unlike the consequences for failure to pay the AAF, the removal of the processing window does not, in and of itself, alter the rights or interests of asylum applicants, observed the court.

“It simply alters the internal processes for reviewing and adjudicating applications for work authorization which, by itself, is a rule of agency procedure,” said the court.

Irreparable harm. Next, the plaintiffs argued that rejection of a pending asylum application is unappealable and, if the applicant has been present in the country for more than one year, precludes the applicant from filing a new application. The government did not deny that those consequences reflected irreparable harm but instead contended that those harms: (1) emanated from the Act itself, not the challenged regulations; and (2) were a product of the existing removal authority of the DHS. The court was unpersuaded.

The court reiterated that the consequences for failing to pay the AAF were not a mandate of the Act and that this was an application of the Act involving independent agency decision making. Further, it noted that while the government was correct that the April 2026 interim final rule did not create new removal authority, it did require the rejection of an application, which, in turn, results in the initiation of removal procedures.

“That process constitutes irreparable harm even if the government relies on otherwise acceptable methods of removal,” said the court, concluding that the plaintiffs had shown a likelihood of irreparable harm with respect to the consequences for failure to pay the AAF.

Equities, public interest. With respect to the balance of equities and the public interest, the court found that because the plaintiffs had shown a high likelihood of success on their claim regarding the consequences for failure to pay the AAF, the court determined that a stay of that policy was in the public interest and concluded that universal relief was appropriate as to this policy.

The case is No. 26-13038-NMG.

Judge: Gorton, N.

Attorneys: Brian D. Netter (Democracy Forward Foundation) for Venezuelan Association of Massachusetts, National TPS Alliance, Asylum Seeker Advocacy Project, Service Employees International Union AFL-CIO, and Service Employees International Union Local 32BJ. Nicole M. O'Connor, U.S. Department of Justice, for U.S. Citizenship and Immigration Services, Joseph B. Edlow, U.S. Department of Homeland Security, and Markwayne Mullin.

Companies: Venezuelan Association of Massachusetts; National TPS Alliance, Asylum Seeker Advocacy Project; Service Employees International Union AFL-CIO; Service Employees International Union Local 32BJ

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