On May 3, 2022, U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) that would increase the automatic extension period for Employment Authorization Documents (EADs) for certain designated categories of EAD renewal applicants who timely filed Form I-765, Application for Employment Authorization before their EAD’s current expiration. This rule was issued in response to the extensive backlog of EAD renewal applications currently pending with the USCIS, which has resulted in incredible challenges for both employers and employees.
This TFR amended existing Department of Homeland Security (DHS) regulations by extending the automatic extension period for EAD applicants from 180 days to 540 days. The change went into effect on May 4, 2022 to provide those non-immigrants, otherwise eligible for the automatic extension, an opportunity to maintain employment authorization while USCIS attempts to address its long backlog of EAD renewal applications.
Background
For years, the financial and staffing challenges of USCIS have impaired its ability to efficiently process cases. In January of 2017, the DHS announced a final rule intended to benefit U.S. employers and foreign workers participating in certain employment-based immigrant and non-immigrant visa programs by allowing USCIS to provide automatic extensions to certain EAD renewal applicants of their expiring EADs so long as certain criteria were met. At the time, the USCIS was taking 3 to 6 months to adjudicate EAD renewal applications based on pending Adjustment of Status (AOS) applications to legal permanent residence (I-485). Five years later, that processing time has since doubled and tripled in some locations. It is now taking the USCIS 8.5 to 20 months (depending on which service center the application was filed with) to process these EAD renewals. The increased challenges faced by USCIS due to the COVID-19 pandemic coupled with the sudden influx of EAD initial and renewal filings USCIS received in 2021 led to the massive backlog we are seeing today for EAD renewal applicants. As of December 31, 2021, USCIS had over 1.56 million EAD renewal applications pending with USCIS.[1]
This TFR comes at a crucial time, as employers have been struggling to retain their foreign national employees whose EADs have expired and remain pending adjudication after 180 days. Renewal applicants are losing their jobs, and employers are suddenly faced with finding replacement workers when the U.S. economy is experiencing more job openings than available workers. The TFR recognizes the obstacles both employers and employees are facing as a result of the backlog. As stated by USCIS Director Ur M. Jaddou, “…the agency has determined that the current 180 day automatic extension for employment authorization is currently insufficient.” The TFR will temporarily provide an additional automatic extension time of 360 days (for a total of up to 540 days) to eligible EAD renewal applicants while USCIS continues to work through its pending caseloads that were exacerbated by the pandemic.
Who qualifies for this extended EAD automatic work authorization?
The criteria for receiving this increased automatic extension of up to 540 days remain the same as that currently applicable for an automatic extension of up to 180 days. The automatic extension of up to 540 days applies to qualifying EAD renewal applicants whose Form I-797C, Notice of Action, has a “Received Date” of October 26, 2023 or earlier and who meet the following criteria:
- Have timely filed an application to renew their employment authorization and/or EAD using Form I-765, Application for Employment Authorization, before the EAD expires [except for certain employees with Temporary Protected Status (TPS)], and the Form I-765 EAD renewal application remains pending.
- Have been issued a Form I-797C, Notice of Action, issued for the corresponding Form I-765 EAD renewal application, that states an eligibility category that is the same as the eligibility category stated on the front of the EAD except:
(a) In the case of an EAD and I-797C, each may contain either an A12 or C19 TPS category code (The category codes do not have to match for this very limited exception.)
(b) For H-4 (C26), E (A17), and L-2 (A18) dependent spouses, whose I-797C must be accompanied by an unexpired Form I-94 indicating H-4, E, or L-2 non-immigrant status. Please refer to the ways E and L spouses may now document their work authorization, as noted later in this article.
- Be within one of the eligibility categories that qualify for the automatic extension, which are: A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19. The eligible categories are published on the USCIS Automatic EAD Extension page. Please also note the attached list to this article below. Some category codes on the EAD may include the letter ‘P’, such as C09P. Employers should disregard the letter ‘P’ when comparing the category code on the EAD with the category code on Form I-797C. Note that only certain employees, who file a Form I-765 renewal application within categories A17, A18, and C26 are eligible for an automatic extension.
What EAD applicants benefit from this TFR?
- EAD renewal applicants in the qualifying automatic extension categories, whose Forms I-765 are still pending as of May 4, 2022, including those whose automatic 180 days extension periods expired BEFORE May 4, 2022.
- EAD renewal applicants in the qualifying automatic extension categories, who file a Form I-765 from May 4, 2022 through October 26, 2023.
How does the new EAD extension period of up to 540 days apply to those qualifying applicants whose EADs are still pending on May 4, 2022, and have expired before May 4, 2022?
- If the EAD renewal applicant’s automatic extension period of 180 days lapsed prior to May 4, 2022, the applicant will receive an automatic resumption of their employment authorization/ EAD validity for an additional period beginning from May 4, 2022, and ending up to 540 days from the expiration date of their EAD.
- Even though the “Card Expires” date specified on the EAD has passed as well as the 180 day auto extension from that date, such individuals will now have an additional extension of work authorization for up to 360 days from that EAD “Card Expires” date for a total of up to 540 days.
How does the new EAD extension period of up to 540 days apply to those qualifying applicants whose EAD renewals are filed timely from May 4, 2022 through October 26, 2023?
If the EAD renewal application is filed while the temporary automatic extension increase is applicable, which is during the 18-month period beginning on May 4, 2022 and ending on Oct. 26, 2023; then employment authorization based on the EADs is automatically extended for up to 540 days from the expiration date of the EAD .
The Form I-797C, Notice of Action, issued between May 4, 2022 to October 26, 2023 will refer to an automatic EAD extension of up to 540 days. This temporary automatic increase will no longer apply to EAD renewal applications filed after October 26, 2023.
How should employers complete the Form I-9 for those qualifying EAD applicants under the TFR?
On May 9, 2022, USCIS posted guidance regarding the completion of Form I-9 in light of this TFR. As noted above, this temporary increase of the automatic extension period is available to qualifying EAD renewal applicants with pending applications, if they filed their Form I-765 renewal application either:
- Before May 4, 2022, and the 180-day automatic extension has since expired;
- Before May 4, 2022, and the 180-day automatic extension has not yet expired; or
- Between May 4, 2022 and Oct. 26, 2023, inclusive of these dates.
(If applicants file their Form I-765 renewal application after Oct. 26, 2023, the normal 180-day automatic extension period will apply.)
(If applicants file their Form I-765 renewal application after Oct. 26, 2023, the normal 180-day automatic extension period will apply.)
Please refer to the USCIS guidance on their website, I-9 Central, for specific examples of how to annotate the Form I-9 related to auto extension outlined by the TFR. For example, for current employees, annotate the appropriate automatic extension date in Section 2 of the Form I-9 in the additional information field along with the phrase, “EAD EXT,” and attach a copy of the USCIS webpage describing the temporary extension of up to 540 days to the employee’s Form I-9.
The application of the TFR involves a number of considerations for employers. It is advisable to seek legal counsel in this transitional time frame.
Categories Eligible for Automatic Extensions
The following employment eligible categories are eligible for an automatic extension:
| The eligibility category you listed on your Form I-765 renewal application | Description |
| (a)(3) | Refugee |
| (a)(5) | Asylee |
| (a)(7) | N-8 or N-9 |
| (a)(8) | Citizen of Micronesia, Marshall Islands, or Palau |
| (a)(10) | Withholding of Deportation or Removal Granted |
| (a)(12) | Temporary Protected Status (TPS) Granted |
| (a)(17) | Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status* |
| (a)(18) | Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status* |
| (c)(8) | Asylum Application Pending |
| (c)(9) | Pending Adjustment of Status under Section 245 of the Act |
| (c)(10) | Suspension of Deportation Applicants (filed before April 1, 1997) Cancellation of Removal Applicants Special Rule Cancellation of Removal Applicants Under NACARA |
| (c)(16) | Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972) |
| (c)(19) | Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”. |
| (c)(20) | Section 210 Legalization (pending I-700) |
| (c)(22) | Section 245A Legalization (pending I-687) |
| (c)(24) | LIFE Legalization |
| (c)(26) | Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status |
| (c)(31) | VAWA Self-Petitioners |
*For more information on the options available to demonstrate employment authorization for E and L spouses, who are employment authorized incident to status, please refer to earlier blogs on this topic from our immigration group.
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About the Author: Najah S. Allaham is an associate with Dickinson Wright’s Immigration Practice Group. Najah has years of experience assisting employers obtain employment based immigrant visas, including PERM labor certifications, EB1, EB2, and EB3 immigrant visas as well as various non-immigrant employment based visas including E-2, L-1,H-1B, H-2B, TN visas. She can be reached at 248-433-7579 or nallaham@dickinsonwright.com and her bio can be accessed here.
1 https://www.uscis.gov/sites/default/files/document/reports/Quarterly_All_Forms_FY2022_Q1.pdf