United States: USCIS Ends Auto-Extensions for Many EAD Renewal Applications Filed On or After October 30

The IFR amends existing DHS regulations to eliminate the maximum 540-day automatic extension of certain EADs for renewal applications filed on or after October 30. The list of affected EAD categories includes:

• Adjustment of status applicants (C09);
• Refugees and asylees (A3 and A5);
• Noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08);
• Approved self-petitioners under the Violence Against Women Act (VAWA) and their qualified children (A31);
• H-4 spouses with an unexpired H-4 I-94 (C26); and
• Temporary Protected Status (TPS) (A12 or C19) (although TPS EADs may still benefit from blanket auto-extensions if a separate Federal Register notice provides for an automatic extension of TPS EADs for a defined class of TPS holders)

The interim final rule acknowledges that spouses of L and E nonimmigrants are work-authorized “incident to status” and do not require an EAD. The rule says that even if a spouse elects to obtain an EAD, their spousal designation would provide work authorization beyond the date that the EAD expired as long as their spousal nonimmigrant status remains valid as demonstrated on their current I-94, due to their “incident to status” work authorization.

In addition, F-1 students applying for a STEM extension of employment authorization are not affected by the IFR; they receive a 180-day auto-extension upon timely filing of their STEM EAD application pursuant to a separate regulatory provision.

Those affected by the new policy will no longer receive any automatic extension of their EAD upon the timely filing of a renewal application. Their work authorization will expire the day after the expiration date on their EAD card and will not resume again until the start date of any newly issued EAD (unless the foreign national has a separate basis for work authorization to cover the gap).

In 2016, USCIS issued a regulation providing for the automatic extension of work authorization of up to 180 days from EAD expiration for certain EAD renewal applicants who timely file for EAD renewal in the same work authorization category.

In spring 2022, USCIS temporarily increased the auto-extension period to up to 540 days. The measure was designed to reduce the risk of EAD renewal applicants experiencing gaps in work authorization. USCIS made this 540-day auto-extension permanent in December 2024, taking effect in January 2025. The new DHS IFR eliminates this particular auto-extension entirely. In its discussion of the IFR decision-making process, the agency notes that it considered reinstating the 180-day auto-extension and declined to do so.

USCIS says that it will update I-9 Central on the USCIS website and the Handbook for Employers, M-274 to provide employees and employers with specific guidance on Form I-9 completion under the new policy.

Affected foreign nationals – including adjustment of status applicants and H-4 EAD holders – should ensure that they file EAD renewal applications as early as possible to avoid or minimize potential gaps in work authorization. In general, EAD renewal applications can be filed six months prior to the EAD expiration date, though USCIS EAD processing times can extend beyond six months.  

Fragomen is closely tracking implementation of the interim final rule. Because DHS issued the IFR for immediate effect without providing a pre-implementation period for public notice and comment, it could be vulnerable to challenges in court.