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Automatic Extension Period of Employment Authorization Documents

May 10, 2022

Announcement
On May 4, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately, it would increase the automatic extension period for employment authorization documents (EADs) for certain EAD renewal applicants. The rule is limited only to those categories that were previously eligible for an automatic 180-day extension of employment authorization. The rule, which is a temporary rule and in effect until October 23, 2023, was announced in response to the delays the agency has experienced due to the pandemic and other factors relating to staffing and resources over the past several years. USCIS has now announced the automatic extension of employment authorization for a period of 540 days, increasing the authorized period for continued employment without the actual employment authorization document by 340 days.

Background
U.S. immigration regulations permit many foreign nationals to request employment authorization pursuant to status. This includes, but is not limited to, certain applicants for adjustment of status, the spouse of some nonimmigrants, including H-4, L-2, and E dependent spouse visa holders, applicants for asylum and refugee status, and those requesting cancellation of removal, and others. Historically, requests for employment authorization were processed by the agency in a 90-to-120-day period. Over the past few years, USCIS has experienced processing delays, resulting in the inability of applicants to renew employment authorization in order to continue working in this country, leading to the disruption of both the workplace and the foreign national’s ability to work, contributing to income, and supporting themselves and their family. In 2017, USCIS implemented a regulation facilitating an automatic, 180-day extension of EADs for certain categories of EAD holders, which took effect with the provision that the individual filed a timely request for EAD extension. The 180 days appeared not to have been a sufficient amount of time for USCIS to review and issue the document, and for this reason, it has automatically extended employment authorization to a 540-day limit, with a target end date of October 26, 2023.

Who is Eligible for EAD for 540 days?
The automatic 540- day extension only applies to those EAD categories that were previously eligible for the automatic 180-day extension. Three groups of renewal applicants may benefit from this temporary federal rule include:

EAD renewal applicants who have timely filed their EAD renewal applications and currently remain authorized to work. The rule applies to those who submitted renewals of EADs prior to the expiration of their current EADs and which remain pending as of May 4, 2022, and whose EAD has not expired or whose current up to 180 day auto-extension has not lapsed.

New applicants for EAD renewal who submit form I765 – application for employment authorization by October 26, 2023, with the goal of avoiding future gaps in employment authorization.

Renewal applicants who already are experiencing gaps in employment authorization, permitting them to resume an additional period of employment beginning on May 4, and continuing for up to 540 days from the date of their EAD expiration. Even though the rule authorizes an additional period of employment authorization, it does not cure any period of unauthorized employment that might have accrued prior to the issuance of the rule.

I-9 Updates
USCIS has indicated that it will further update I-9 Central on its USCIS website to furnish both employers and employees with specific guidance on Form I-9 compliance, including any additional notations relating to the extension of employment authorization.

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