On May 4, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it would increase the automatic extension period of employment authorization documents (EADs) for certain EAD renewal applicants. Temporary Final Rule (TFR), which took effect immediately on May 4, 2022, applies to EAD renewal applications filed on or before October 25, 2023, on which date the automatic extension period of employment authorization documents will revert to the former rule of an automatic 180-day extension.
Under the TRF, USCIS has increased the automatic extension period of employment authorization documents by up to 360 days, for a total of up to 540 days. The rule applies only to those categories that were previously eligible for an automatic 180-day extension of employment authorization and no new beneficiaries can receive a 540-day automatic extension after October 26, 2023.
EAD Application Overview
USCIS allows foreign nationals in a number of different statuses to apply for employment authorization documents. Historically, processing times for an EAD application were roughly three months, but over the past several years, USCIS processing has slowed dramatically. This delay has resulted in the temporary loss of work authorization for a large number of these noncitizen workers.
In January 2017, DHS implemented a regulation to provide an automatic, 180-day extension of EADs for certain categories of EAD holders, which takes effect when the individual files a timely request for an EAD extension. However, this 180-day extension has not been sufficient due to the long USCIS processing times for EAD extension applications.
In addition to this, USCIS has been in a precarious financial situation exacerbated by the COVID-19 pandemic, hiring freeze, furlough, and dramatic increase in EAD initial and renewal filings. Therefore, the latest automatic extension period of employment authorization documents is designed to help avoid gaps in employment for noncitizens with pending EAD renewal applications and stabilize the continuity of operations for U.S. employers.
Scope of the New Automatic Extension Period of Employment Authorization Documents
The automatic extension period of employment authorization documents is available to eligible renewal applicants with pending applications if they filed Form I-765 renewal applications either:
- Before May 4, 2022, and their 180-day automatic extension has since expired;
- Before May 4, 2022, and their 180-day automatic extension has not yet expired; or
- Between May 4, 2022, and October 26, 2023, inclusive of these dates.
However, DACA and STEM-OPT EXT (C03A, C03B, C03C) do not benefit from the automatic extension period of employment authorization documents.
Applicants should pay attention to the following rules:
- If they file a Form I-765 renewal application after October 26, 2023, the normal 180-day automatic extension period will apply;
- If they filed a Form I-765 renewal application before May 4, 2022, they should have received a Form I-797C Notice of Action receipt notice that describes the automatic extension period of up to 180 days. Therefore, they are eligible for the 540-day automatic extension period of employment authorization documents;
- They will not receive a new I-797C receipt notice reflecting the increased employment authorization and/or EAD automatic extension period;
- Form I-797C receipt notices that refer to an up to 180-day automatic extension will still meet the regulatory requirements for completing Form I-9, even if their 180-day automatic extension expired prior to May 4, 2022;
- Applicants should file a renewal Form I-765 no earlier than 180 days prior to the expiration date of their EAD; and
- 540-day automatic extension period of employment authorization documents will end at the end of 540 days or if USCIS approves or denies the employee’s Form I-765 renewal application before the 540-day period expires.
Conditions for Automatic Extension Period of Employment Authorization Documents
Employees meeting the following conditions qualify for the automatic extension period of employment authorization documents:
- An individual is qualified under Categories Eligible for Automatic Extensions;
- The individual timely filed the Form I-765, Application for Employment Authorization, for renewal of their EAD before their current EAD expired; and
- The I-797C, Notice of Action for the filed Form I-765 contains the same category code as their expiring EAD.
Employees eligible for the automatic extension period of employment authorization documents need to present the same documentation as they would or did for a 180-day automatic extension. Individuals who received Form I-797C Notice of Action receipt notice that describes the automatic extension period of up to 180 days can still present the current I-797C along with the qualifying EAD for I-9 Section 2 or 3 completion and receive the extension for a total of 540 days.
Complying with the 540-Day Automatic Extension Period of Employment Authorization Documents
Employers should attach a copy of the TFR with the employee’s Form I-9 to document the extension of employment authorization and EAD validity. Also, they should take the following steps:
- For existing employees, it is necessary to update Section 2 with the new expiration date and enter “540 Day EAD EXT” in the Additional Information field. 540 days is counted from the “Card Expires” date stated on the face of the EAD.
- If an employee was terminated or put on an unpaid leave of absence based on the expired EAD with an expectation of rehire:
- The employer should be prepared to reintegrate these now auto-extended employees under the new rule, as soon as possible;
- The employer may complete Section 3 (List A or List C), if appropriate, or a new Form I-9 by treating the individual’s employment authorization as having previously expired;
- The rule does not cure any unauthorized employment that may have accrued prior to the issuance of the rule.
When completing Section 1 for new employees, employers should:
- Select “An alien authorized to work until;” and
- Depending on the “Received Date” on Form I-797C, enter either 540 days or 180 days from the “Card Expires” date on the EAD as the expiration date of employment authorization.
Employees whose status does not expire, such as refugees or asylees, should enter N/A as the expiration date.
When completing Section 2 for new employees, employers should:
- Enter EAD in the Document Title field;
- Enter the receipt number from Form I-797C in the Document Number field; and
- In the Expiration Date field, enter the date 540 days from the “Card Expires” date on the EAD or, for A17, A18 or C26, the expiration date of validity shown on Form I-94, whichever is earlier.
- Additional documentation is required to receive the extension of up to 540 days;
- Individuals with EADs containing these category codes must also present an unexpired Form I-94, Arrival-Departure record indicating the unexpired nonimmigrant status of E-1, E-2, E-2C, L-2, or H-4; and
- These employees will be able to receive an extension on their work authorization for either 540 days from the expiration date on their EAD, or until their Form I-94 expires, whichever is earlier.
For A12 and C19 EAD category codes:
- I-797C will be required to benefit from the 540-day automatic extension;
- For TPS beneficiaries presenting an EAD and I-797C, the notice must contain either the A12 or C19 category, but the category codes do not need to match each other on both documents; and
- The Country of Birth listed on a TPS beneficiary’s A12 or C19 EAD has no bearing on whether the employee is eligible for a TPS and a related automatic extension.
Flexibilities to Ease Pandemic-Related Challenges for Employers
In addition to the automatic extension period of employment authorization documents, other measures were taken in response to the COVID-19 pandemic. Immigration and Customs Enforcement (ICE) announced another six-month extension of the Form I-9 remote document inspection flexibility policy until October 31, 2022.
While both of these flexibilities are welcome news for employers, it is unclear how long the pandemic-related effects will last. Therefore, it is critical that employers establish a Form I-9 compliance program, pay close attention to any changes or updates and overview policies regarding Form I-9 completion, storage, and maintenance. To do this effectively, they can rely on electronic Form I-9 management and ensure preparation, document storage, and auditing of the Form I-9 compliant with immigration guidelines.Eliminate inefficiency, paper-driven errors and inconsistent Form I-9 management while staying prepared for potential government scrutiny with this I-9 compliance software solution.