- The 540-day automatic extension only applies to EAD categories currently eligible for an automatic 180-day extension
- A timely-filed Form I-765 EAD renewal application is still required
- The temporary 540-day extension is effective from May 4, 2022 through October 26, 2023. Beginning October 27, 2023, automatic EAD extensions will revert to the up to 180-day period.
- If the EAD validity plus 180-day auto extension has already expired, beginning May 4, 2022 the holder is eligible for up to 540 days’ additional work authorization from the expiration date on the face of their EAD. Such individuals may resume employment if they are still within the up to 540-day auto extension period.
- The auto extension will end upon 1) notification of a final decision on the renewal application; or 2) the end of the up to 540-day period, whichever comes first.
Automatic Extension of Employment Authorization and Employment Authorization Documents (EADs) for Certain Renewal Applicants:
Temporary Final Rule
Effective May 4, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) is temporarily amending existing DHS regulations related to expiring employment authorization and Employment Authorization Documents (EADs) for certain renewal applicants. The prior extension period of up to 180 days will automatically increase to up to 540 days from the expiration date stated on their current EADs.
By 2019, USCIS was in a precarious financial situation that impaired the efficient completion of caseloads. The COVID-19 pandemic exacerbated these challenges in 2020, with a hiring freeze and furlough threat leading to workforce attrition and severely reduced capacity. In 2021, before USCIS could recover from these fiscal and operational impacts, there was a sudden and dramatic increase in EAD initial and renewal filings.
As a result, processing times for Form I-765 have increased to such a level that the 180-day automatic extension period for certain Form I-765 renewal applicants’ employment authorization and EADs is no longer sufficient to prevent or mitigate the risk of gaps in employment authorization and documentation, as it was originally intended.
For some applicants, the automatic extension period has already expired. As a result, these renewal applicants may be unable to obtain employment or continue employment with their current employers, and employers may suddenly be faced with finding replacement workers during a time when the U.S. economy is experiencing a high demand for labor as compared to the available supply of workers. To alleviate this hardship for both employees and employers, DHS has determined that it is imperative to immediately increase the automatic extension period of EADs for eligible Form I-765 renewal applicants during a temporary period of time. This temporary increase will also allow USCIS an opportunity to address staffing shortages, implement additional efficiencies, and ultimately reduce processing times for EAD applications.
Who does the extension apply to?
The up to 540-day automatic EAD extension only applies to those EAD categories currently eligible for the previous up to 180-day automatic extension of employment authorization and EAD validity. USCIS will provide up to 360 days (for a total of up to 540 days) of additional automatic extension time to eligible applicants with a pending EAD renewal application on the temporary rule’s effective date and for 540 days thereafter (that is, from May 4, 2022 to Oct. 26, 2023).
Applicants with pending I-765 renewal applications as of May 4, 2022, will not receive a new receipt notice reflecting the increased EAD automatic extension period. However, Form I-797C notices that refer to a 180-day automatic extension will still meet the regulatory requirements for employment authorization. Therefore, individuals who show Form I-797C notices that refer to a 180-day extension, along with their qualifying EADs, still receive the up to 540-day extension under this rule. For guidance on completing Form I-9, Employment Eligibility Verification, visit I-9 Central.
For additional information on EAD renewals, visit our Automatic Employment Authorization Document (EAD) Extension page.
This update was prepared by Fausta M. Albi, Partner, Larrabee Albi Coker LLP.
Legal Disclaimer: This post is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter. Immigration laws and policies change frequently, often without notice. It is therefore important to seek direct legal counsel based upon individual circumstances.