A proposed US Labor Department rule could make it easier for 401(k) retirement plans to offer cryptocurrencies, including smaller tokens. But the proposal does not guarantee that employers or plan managers will include them, and experts cited by Cointelegraph expect Bitcoin and Ether to face fewer obstacles.
Original publication: Nov. 7, 2026, at 04:04:27 UTC+8.
Proposal reaches White House review
According to the Office of Information and Regulatory Affairs, the rule reached the White House for final review on the Thursday before publication. It aims to facilitate alternative investments, including crypto, in retirement plans while providing greater legal protection for employers and plan managers. It was still a proposal, not an effective rule, at the time of the report.
The Labor Department’s March proposal does not name eligible digital assets or establish a minimum market capitalization. Instead, it directs plan managers to consider six factors: performance, fees, liquidity, valuation, benchmarks and complexity.
That leaves room for smaller cryptocurrencies in principle, but their limited track records, liquidity and other risks could complicate their inclusion.
Bitcoin and Ether have an advantage—not automatic eligibility
Teresa Goody Guillén, managing partner at Bellementis PLLC, said Bitcoin and Ether would likely be offered first because of their established markets and investment products. According to CoinGecko data cited in the report, their market capitalizations were approximately $1.5 trillion and $273 billion, respectively, as of 20:01 UTC on Nov. 6, 2026.
Guillén said those advantages would not automatically exclude other tokens. Plan managers would still need to demonstrate that their choices were prudent and met standards for liquidity, valuation and investor protection.
“Big doesn’t mean suitable, and small doesn’t mean disqualified,” she said, arguing that digital assets should neither receive special treatment nor be excluded because they use different technology.
Bernardo Brites, co-founder and CEO of Trace Finance, took a more restrictive view of which assets could satisfy those requirements. In his assessment, Bitcoin and Ether pass, while other tokens fall short on track record or benchmarks before market capitalization becomes decisive.
For Brites, a practical hurdle is whether a plan committee can document a reliable daily price through a regulated investment wrapper. That is his assessment of likely implementation, rather than an explicit restriction in the proposal.
Funds may precede direct holdings
The proposal does not restrict crypto exposure to exchange-traded funds (ETFs) or managed funds. Nevertheless, Guillén expects those products to come first because they fit existing custody and recordkeeping systems.
Direct crypto holdings would raise additional storage, cybersecurity and pricing concerns, she said, while stressing that those risks should not automatically disqualify them.
Brites also expects a gradual rollout: existing brokerage options first, followed by standalone ETFs and funds with small crypto allocations. He forecast that some options could become available in 2027, with ETFs reaching larger employers later that year and broader availability potentially following by 2028. Those dates are his expectations, not an official implementation schedule.
“The rule changes the legal risk, not the plumbing, and the plumbing is slower,” Brites said. He added that White House review can take up to 90 days, followed by publication and an effective date typically 60 days later.
Litigation and policy reversals remain concerns
The proposed protections would not stop retirement-plan managers from being sued over their investment decisions, Brites cautioned. He also said the possibility of a future administration reversing the rule could discourage employers from adding crypto to long-term plans.
He pointed to the reversal of 2022 guidance in 2025 as a reason for caution. With courts giving agencies less deference, he added, the weight that the proposed safe harbor would carry in litigation remains unsettled.
For retirement savers, the distinction is important: a rule that reduces legal barriers would not itself require a plan to offer crypto, determine which tokens qualify or resolve the operational and legal questions facing employers.