U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) that increases the automatic extension period for Employment Authorization Documents (EADs) available to certain EAD renewal applicants. The TFR, which takes effect immediately on May 4, 2022, applies to EAD renewal applications filed on or before October 26, 2023, including those applications which were filed prior to May 4.  The rule is limited to those EAD categories that were previously eligible for an automatic 180-day extension. Under the temporary rule, USCIS has increased the automatic 180-day extension by up to 360 days, for a total of up to 540 days.

Background

USCIS allows foreign nationals in a number of different statuses to apply for EADs.  Historically, processing times for an EAD application were roughly three months.  Over the past several years, USCIS processing has slowed dramatically, and it often takes over one year for USCIS to issue an EAD card. This delay has resulted in the temporary loss of work authorization for a large number of these noncitizen workers. DHS implemented a regulation in January 2017 to provide an automatic, 180-day extension of EADs for certain categories of EAD holders, which takes effect when the individual files a timely request for an EAD extension. However, this 180-day extension has not been sufficient due to long delayed USCIS processing times for EAD extension applications.

Through this TFR, USCIS seeks to avoid these gaps in employment for noncitizens with pending EAD renewal applications, and to stabilize the continuity of operations for U.S. employers. 

In issuing this TFR, USCIS invoked the Administrative Procedure Act’s (“APA”) “good cause” exception to forego the usual public notice-and-comment period required for rulemaking under the APA. The good cause exception “excuses notice and comment in emergency situations, or where delay could result in serious harm.”

Scope of the TFR

The automatic 540-day extension only applies to those EAD categories previously eligible for an automatic extension of up to 180 days. Specifically, the TFR applies to three groups of EAD renewal applicants:

1. Renewal applicants who have already timely filed their EAD renewal applications and currently remain authorized to work. The new rule applies to renewal applicants who have filed EAD renewal applications (Form I-765) prior to the expiration of their EADs, which remain 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.

2. Renewal applicants who file Form I-765 by October 26, 2023. The rule also applies to new renewal applicants who file Form I-765 by October 26, 2023 to avoid a future gap in employment authorization. Applicants who file a Form I-765 renewal application after this filing timeframe and who are eligible for an automatic extension of their employment authorization will receive the previously provided 180-day automatic extension period.

3. Renewal applicants who already are experiencing a gap in employment authorization. Importantly, the rule also applies to renewal applicants who are already experiencing a gap in employment authorization, authorizing them to resume an additional period of employment beginning on May 4, 2022, and continuing for a period of up to 540 days from the date of their EAD expiration. However, although the rule authorizes an additional period of employment authorization, it does not cure any period of unauthorized employment that may have accrued prior to issuance of the rule.

I-9 Considerations

USCIS has indicated that it plans to issue Form I-797C Notices of Action with an explanation of the up to 540-day automatic extension period for EAD renewal applications filed on or after May 4, 2022. USCIS does not plan to issue updated Form I-797C notices to eligible applicants who filed their Form I-765 renewal application before May 4, 2022. However, individuals who show Form I-797C notices that refer to a 180-day extension, along with their qualifying EADs, will still receive the automatic 540-day extension under this rule.

USCIS has also indicated that it will update the web page that is referenced in the current Form I-797C notice to reflect the change in the automatic extension period. USCIS instructs the public to 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. Employers should attach a copy of the webpage with the employee's Form I-9 to document the extension of employment authorization.

USCIS will also update I-9 Central on the USCIS website to provide employees and employers with specific guidance on Form I-9 completion, including any required notations indicating the automatic extension of employment authorization.