United States: USCIS Revives 540-Day Auto-Extension for Certain EAD Renewals

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 response to a growing number of EAD applicants and significant increases in EAD processing times – further exacerbated by the COVID pandemic – 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. That temporary rule expired on October 26, 2023, but USCIS has determined that an increased auto-extension is still necessary to minimize gaps in employment authorization for hundreds of thousands of renewal applicants. The agency has issued this new temporary auto-extension measure to mitigate potential harm from employment authorization gaps for eligible applicants.

The increased auto-extension period of up to 540 days will apply to eligible EAD applicants who have properly filed renewal applications on or after October 27, 2023, as long as these applications remain pending on April 8, 2024 and the applicant’s current EAD or 180-day auto-extension period has not expired. The new increased auto-extension will also apply to eligible applicants who apply to renew their EADs between April 8, 2024 and September 30, 2025. 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, or during the filing period described in an applicable Federal Register notice related to Temporary Protected Status (TPS)-related EADs;
• Be applying for renewal in the same work authorization category on which their current EAD is based or be renewing an EAD based on 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, among others:

• Adjustment of status applicants (C09);
• 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);
• 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);
• E-1, E-2, and E-3 spouses with an unexpired E spousal I-94 (A17), noting however, that such individuals are not required to apply for an EAD, as they are employment-authorized incident to their valid E-1S, E-2S, or E-3S status; and
• L-2 spouses with an unexpired L-2 I-94 (A18), noting however, that such individuals are not required to apply for an EAD, as they are employment-authorized incident to their valid L-2S status.

F-1 STEM OPT EAD extension applicants are not eligible for the temporary 540-day maximum auto-extension period. Instead, they continue to be eligible for an auto-extension period of up to 180 days. STEM OPT EAD renewal applicants can also request expedited processing of their applications for an additional fee.

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. The temporary rule also does not cure any period of unauthorized employment accrued prior to April 8, 2024.

According to USCIS, acceptable proof of eligibility for the new 540-day auto-extension will be the applicant’s qualifying EAD card and the Form I-765 receipt notice (Form I-797C) indicating the same qualifying employment eligibility category as their underlying EAD. For a TPS-related EAD, the current EAD and receipt notice can indicate either A12 (TPS granted) or C19 (TPS applicant) as the work authorization codes on either document; the codes need not match.

USCIS intends to reference the new maximum 540-day auto-extension on eligible Form I-765 receipt notices that are issued on and after April 8, 2024. The agency does not intend to issue new receipt notices for Form I-765 applications that are pending on that date, but these receipt notices can still be used as documentation of eligibility as described above, notwithstanding their reference to a 180-day auto-extension. USCIS plans to update its website with clarifying guidance on the new auto-extension and notes that employers completing Form I-9 may attach a copy of the webpage guidance to the employee’s Form I-9 in order to document the extension of work authorization and EAD validity.

In the new temporary final rule, the agency requests comments from the public on whether to permanently implement the maximum 540-day auto-extension, or whether another duration or means of minimizing employment authorization gaps might be more effective for some or all eligible EAD renewal applicants. Comments can be submitted to the agency through June 7, 2024.

Since September 2023, certain EAD applicants, including adjustment of status applicants, applicants for asylum or withholding of removal, and others, have been able to receive five-year EADs, increased from one- or two-year EADs. USCIS expects that this new, permanent policy will cause EAD filings in the applicable categories to decrease starting in late FY 2025 (which ends September 30, 2025) and remain low until Q3 of FY 2028. The agency also predicts that the five-year validity period will lead to a greater than 95% reduction in EAD renewal filings from FY 2026 to late FY 2028 for categories covered by the policy. This reduction could reduce the widespread risks of work authorization gaps and mitigate the need for lengthy auto-extensions.

If your organization wishes to comment on the issues posed by USCIS in the temporary final rule regarding the future of the 540-day maximum auto-extension or other related measures described in this alert, please contact your designated Fragomen professional or the firm’s Government Relations and Compliance group.

Employers should ensure that their staff members involved in Form I-9 compliance are aware of this new temporary lengthening of the EAD auto-extension period in certain cases and identify any employees that may benefit from the maximum 540-day auto-extension.