Long processing times for renewal Employment Authorization Documents has resulted in the loss of work authorization for many individuals because their EAD cards expired before new cards could be issued. Individuals who filed for renewals were entitled to automatic extensions of 180 days, but the U.S. Citizenship and Immigration Services was taking more than 180 days to process the renewal applications.
That problem is now resolved. On April 8, the USCIS issued a Temporary Final Rule that increased the automatic extension period from 180 days to 540 days. The USCIS acknowledged that it was taking this action “to avoid lapses in employment authorizations.”
This more generous automatic renewal period applies to eligible EAD renewal applicants who timely and properly filed I-765 applications on or after October 27, 2023, if the application is still pending on April 8, 2024; and also to those applicants who file their renewal applications from April 8, 2024, through September 30, 2025.
On May 4, 2022, the USCIS issued a Temporary Final Rule extending the automatic renewal period from 180 days to 540 days, but that rule expired on October 26, 2023. The new Temporary Final Rule means in effect that the 540-day automatic renewal period will retroactively stay in place without interruption.
The USCIS announcement of the April 8 Temporary Final Rule estimates that, without the latest extension, approximately 800,000 EAD applicants and 60,000-80,000 employers would have been adversely affected.
EAD categories eligible for the automatic extension
The following EAD categories are eligible for an automatic extension:
|
Category |
Description |
|
(a)(3) |
Refugee |
|
(a)(5) |
Asylee |
|
(a)(7) |
N-8 or N-9 |
|
(a)(8) |
Citizen of Micronesia, Marshall Islands, or Palau |
|
(a)(10) |
Withholding of deportation or removal granted |
|
(a)(12) |
Temporary Protected Status granted |
|
(a)(17) |
Spouse of principal E nonimmigrant with unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status |
|
(a)(18) |
Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status |
|
(c)(8) |
Asylum Application Pending |
|
(c)(9) |
Pending Adjustment of Status under Section 245 of the Act |
|
(c)(10) |
Suspension of Deportation Applicants (filed before April 1, 1997) |
|
(c)(16) |
Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972) |
|
(c)(19) |
Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit.” |
|
(c)(20) |
Section 210 Legalization (pending I-700) |
|
(c)(22) |
Section 245A Legalization (pending I-687) |
|
(c)(24) |
LIFE Legalization |
|
(c)(26) |
Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status |
|
(c)(31) |
VAWA self-petitioners |
(From USCIS website with minor edits.)
How to qualify
Applicants in the eligible categories qualify for an automatic extension of an EAD renewal application if the applicant
- Properly and timely filed a Form I-765 renewal application before the current EAD expired (exceptions apply for certain applicants with Temporary Protected Status or a pending TPS application),
- Filed the renewal application under a category that is eligible for an automatic extension, and the category on the applicant’s current EAD matches the “Class Requested” listed on the applicant’s Form I-797C Notice of Action, Receipt Notice. (For applicants in TPS, this Notice must contain either the A12 or C19 category, but the categories do not need to match each other.)
Compliance with I-9 requirements
Eligible EAD renewal applicants must present proof, for I-9 compliance, that they are entitled to automatic extensions under the new rule. The USCIS has provided the following guidance:
To present acceptable proof of the automatic extension of employment authorization and/or EAD validity, you can show your Form I-797C receipt notice that refers to the 180-day extension, along with your qualifying EAD (and also your unexpired Form I-94, if you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes). This document combination is sufficient proof of an up to 540-day automatic extension under the May 2022 temporary final rule or April 2024 temporary final rule, counting from the expiration date on your current EAD.
If you filed a Form I-765 renewal application on or after May 4, 2022, and before Oct. 27, 2023…, you should have received a Form I-797C, Notice of Action receipt notice that has information regarding the up to 540-day automatic extension.
If you file a Form I-765 renewal application on or after April 8, 2024…, USCIS will issue a Form I-797C, Notice of Action receipt notice with an explanation of the up to 540-day automatic extension period.
If you filed a Form I-765 renewal application on or after Oct. 27, 2023, and before April 8, 2024…, even a Form I-797C notice that refers to a 180-day automatic extension still meets the regulatory requirements of the April 2024 temporary final rule. Therefore, you may present Form I-797C with your facially expired EAD to an employer to demonstrate that you are eligible for the up to 540-day automatic extension. Instead of issuing updated Form I-797C notices, USCIS will update the webpage that is referenced in the Form I-797C notice to reflect the change in the automatic extension period.
Employees and employers should refer to [the USCIS web page] when determining whether a Form I-797C, Notice of Action, if presented with the facially expired EAD, is acceptable for Form I-9. Employers may attach a copy of the [web page] with the employee’s Form I-9 to document the extension of employment authorization and/or EAD validity.
An individual’s automatic extension period may terminate prior to the maximum period either automatically when USCIS issues a decision on the applicant’s Form I-765 renewal application, or upon notice.
Conclusion
The reinstatement of the 540-day extension is an important benefit to eligible applicants and their employers. The risk of a gap in an applicant’s work authorization should be greatly reduced, thereby allowing the continued employment of these eligible applicants.