The Department of Homeland Security has announced a Temporary Final Rule to take effect on May 4, 2022, which increases the automatic extension period applicable to expiring Employment Authorization Documents (Forms I-766 or EADs) from 180 days to up to 540 days for certain renewal applicants who have timely filed Form I-765 Applications for Employment Authorization.
To qualify:
EAD Renewal Applicants must timely file an application to renew their employment authorization and/or EAD on Form I-765 before the EAD expires;
The renewal Form I-765 must be based on the same employment authorization category on the front of the expiring EAD, or is for an individual approved for TPS whose EAD was issued pursuant to 8 CFR 274a.12(c)(19); and
The noncitizen’s eligibility to apply for employment authorization continues notwithstanding the expiration of the EAD and is based on an employment authorization category that does not require the adjudication of an underlying application or petition before the adjudication of the renewal application.
* For a discussion on which classes of noncitizens may qualify for automatic extensions of their employment authorization and/or EAD when filing a renewal application, please either see https://www.uscis.gov/eadautoextend or reach out to our team at Goldblum Pollins & Dennis. Note that these provisions will not benefit most H-4 EAD holders.
The following three groups of EAD renewal applicants may take advantage of this temporary rule:
Those renewal applicants eligible for the automatic extension who already have filed their renewal Form I-765 application, which remains pending as of May 4, 2022, and whose EAD has not expired or whose current up to 180-day auto-extension has not yet lapsed.
New renewal applicants who file Form I-765 during the 18-month period following the rule’s publication (from May 4, 2022 through October 26, 2023) to avoid a future gap in employment authorization and/or documentation.
Renewal applicants who already are experiencing a gap in employment authorization and/or EAD validity. This group may resume an additional period of employment authorization and/or EAD validity on May 4, 2022, and continue for a period of up to 540 days from the date their employment authorization and/or EAD expired, as shown on the face of the EAD. [Note that this temporary final rule does not address periods of unauthorized employment.]
As is consistent with current guidance, applicants should file a renewal Form I-765 no earlier than 180 days prior to the expiration date of their EAD.
Pursuant to this temporary final rule, an EAD that appears on its face to be expired is considered unexpired for up to 540 days from the expiration date on the front of the EAD when combined with a Notice of Action (Form I797C) indicating timely filing of the EAD renewal application and the same employment eligibility category as stated on the facially expired EAD (or in the case of an EAD and I797C notice that each contains either an A12 or C19 TPS category code, the category codes need not match).
Pertinently, USCIS will not be issuing updated Form I-797C notices to eligible applicants who filed their Form I-765 renewal application before May 4, 2022. In these cases, the Form I-797C notices that refer to a 180-day automatic extension still meet the regulatory requirements and 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.
USCIS will update the web page on the USCIS website that is referenced in the current Form I-797C notice to reflect the change in the automatic extension period. Please refer to this webpage when determining whether a Form I-797C Notice of Action, if presented with the expired EAD, is acceptable for Form I-9 or other purposes, such as to obtain benefits. Employers should attach a copy of the webpage with the employee’s Form I-9 to document the extension of employment authorization and/or EAD validity.
USCIS also will update I-9 Central on the USCIS website to provide employees and employers with specific guidance on Form I-9 completion pursuant to this temporary rule.
This temporary rule is scheduled to end on October 26, 2023.