United States: USCIS Issues Temporary Final Rule Lengthening Automatic Work Authorization Extension for Certain EAD Renewal Applicants

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 and whose work authorization does not require adjudication of an underlying petition or application to establish the applicant’s eligibility for EAD renewal.  
 
With EAD processing times having increased significantly, USCIS has determined that this auto-extension period needs to be temporarily increased to up to 540 days, to reduce the risk of EAD renewal applicants experiencing a gap in work authorization.   

The new auto-extension period of up to 540 days will apply to eligible EAD applicants who have renewal applications pending on May 4, 2022, and to those who apply to renew their EADs between May 4, 2022 and October 26, 2023. To qualify for the auto-extension, the applicant must:  

• Timely file the Form I-765 EAD renewal application prior to the expiration of the current EAD;  
• Be applying for renewal in the same work authorization category on which their current EAD is based or be renewing an EAD based on Temporary Protected Status (TPS); and 
• Be applying under a qualifying work authorization category.

The list of EAD categories that will qualify for the lengthened auto-extension includes the following categories and corresponding eligibility codes: 

• Adjustment of status applicants (C09); 
• E-1, E-2, and E-3 spouses with an unexpired E-1, E-2, or E-3 I-94 (A17); 
• L-2 spouses with an unexpired L-2 I-94 (A18); 
• H-4 spouses with an unexpired H-4 I-94 (C26); 
• Temporary Protected Status (TPS) (A12 or C19); 
• Refugees and asylees (A3 and A5); 
• Noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08); and 
• Approved self-petitioners under the Violence Against Women Act (VAWA) and their qualified children (A31). 

F-1 STEM OPT EAD extension applicants will not be eligible for the new temporary 540-day maximum auto-extension period. Instead, they continue to be eligible for an auto-extension period of up to 180 days. Indications from USCIS are that some of these applicants may become eligible for premium processing of their EAD renewal applications this fiscal year under USCIS’s recently announced gradual expansion of premium processing services.   
 
The new temporary maximum 540-day auto-extension period will also apply to qualifying EAD renewal applicants with applications pending on May 4. This includes qualifying applicants who are currently not work authorized due to their current 180-day auto-extension period having expired. Such applicants will be able to resume employment beginning on May 4. However, for such applicants, the implementation of the new maximum 540-day auto-extension period will not cure any periods of unauthorized employment the applicant may have accrued between the expiration of the 180-day auto-extension and the May 4, 2022 effective date of the new auto-extension period. 
 
As with the current maximum 180-day auto-extension period, the 540-day maximum auto-extension period will automatically cease if the EAD renewal application is denied before the end of the auto-extension period. 

USCIS will include information concerning the new temporary maximum 540-day auto-extension rule on I-765 filing receipts issued after May 4, 2022. It does not intend to issue new I-797 filing receipts for pending Form I-765 applications, but the previously issued receipts for such cases can be used as documentation of eligibility for the maximum 540-day auto-extension period in qualifying cases, notwithstanding that the receipts may reference the previously applicable 180-day auto-extension period. 
 
USCIS anticipates that Form I-765 processing times should return to more normal levels by October 26, 2023, and EAD renewal applications filed after that date will only be able to benefit from the maximum 180-day auto-extension period, if eligible. However, the temporary regulation authorizing a maximum 540-day auto-extension period will remain in effect through October 15, 2025, in order to ensure that the lengthened auto-extension period remains in effect throughout the pendency of qualifying EAD renewal applications filed on or before the October 26, 2023 deadline. 

Employers should ensure that their staff members involved in Form I-9 compliance are aware of this temporary lengthening of the EAD auto-extension period in certain cases. Employers should also identify any employees whose employment may have been terminated or suspended due to an expiration of the 180-day auto-extension period, to assess whether they may now be able to resume employment beginning on May 4, 2022, based on the new temporary maximum 540-day auto-extension period. 
 
Fragomen will be monitoring the implementation of the new auto-extension period, and further client alerts may be issued as further developments occur.