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USCIS Announces Automatic Extensions of EADs up to 540 days for certain categories — Visa Lawyer Blog — May 5, 2022

USCIS is about to make it a lot easier for certain noncitizens to remain employment authorized. On May 3, 2022, the agency announced a new Temporary Final Rule (TPR) that automatically extends the period of employment authorization on Employment Authorization Documents (EADs) from 180 days up to 540 total days.

The automatic extension time is counted from the expiration date of the employment authorization and / or EAD. This new regulation became effective as of yesterday, May 4, 2022, and will be in effect until October 15, 2025. Once the regulation reaches its time limit, the automatic extension will revert to 180 days.

USCIS decided to issue this new policy to prevent employment interruptions for noncitizens that have pending EAD renewal applications with the agency (Form I-765 Application for Employment Authorization).


Who qualifies for the automatic extension?


The additional extension of up to 540 total days will be available only to renewal applicants who timely file a Form I-765 renewal application with USCIS from the period of May 4, 2022, to October 26, 2023, and who were previously eligible to receive the 180-day automatic extension.

For those who file their Form I-765 renewal application after October 26, 2023, the normal 180-day automatic extension period will apply.


You are eligible for the automatic extension if you:

  • Properly filed Form I-765 for a renewal of their employment authorization and / or EAD before their current EAD expired, and
  • Were otherwise eligible for a renewal, meaning that:
    • Their renewal application is under a category that is eligible for an automatic extension (see the list of categories below); and
    • The Category on their current EAD matches the “Class Requested” listed on their Form I-797C Notice of Action, Receipt Notice. (Note: If you are a Temporary Protected Status (TPS) beneficiary or pending applicant, your EAD and this Notice must contain either the A12 or C19 category, but the categories do not need to match each other. In addition, for H-4 , E, and L-2 dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status (including E-1S, E-2S, E-3S, and L-2S class of admission codes) must accompany Form I-797C when presenting proof of employment authorization to an employer for Form I-9, Employment Eligibility Verification, purposes).

Which categories are eligible?


You must be in one of the following employment eligible categories to be eligible to receive an automatic extension of up to 540 days and your renewal application must be timely filed by October 26, 2023:

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 nonimmigrant status1
(a) (18) Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 nonimmigrant status2
(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

Noncitizens with pending EAD renewals whose 180-day extension has lapsed


Those noncitizens with a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired, will be granted an additional period of employment authorization and EAD validity, beginning on May 4, 2022 and lasting up to 540 days from the expiration date of their EAD. This means that such individuals may resume employment if they are still within the up to 540-day automatic extension period and are otherwise eligible.


Noncitizens with pending EAD renewals whose 180-day extension has not lapsed


Noncitizens with a pending renewal application still covered under the 180-day automatic extension will be granted an additional up to 360-day extension, for a total of up to 540 days past the expiration of the current EAD. Noncitizens with a pending renewal application and valid EAD on May 4, 2022, or who timely file an EAD renewal application before October 27, 2023, will be granted an automatic extension of up to 540 days if their EAD expires before the renewal application is processed .


What is acceptable proof of my automatic extension?


For those who filed a Form I-765 renewal application on or after May 4, 2022, USCIS will send you a Form I-797C Notice of Action receipt notice that has information regarding the up to 540-day automatic extension. If you are eligible for the automatic extension, this receipt notice, together with your expired EAD (and your unexpired Form I-94, if you are an H-4, E, or L-2 dependent spouse, including E-1S, E -2S, E-3S and L-2S class of admission codes) will serve as acceptable proof of employment authorization and / or EAD validity during the up to 540-day automatic extension period.

For those who filed a Form I-765 renewal application before May 4, 2022, you should have received a Form I-797C Notice of Action receipt notice that describes the automatic extension period of up to 180 days. You will not receive a new I-797C receipt notice reflecting the increased employment authorization and / or EAD automatic extension period. However, Form I-797C receipt notices that refer to an up to 180-day automatic extension will still meet the regulatory requirements for completing Form I-9, including if your 180-day automatic extension expired prior to May 4, 2022.

To present acceptable proof of the automatic extension of employment authorization and / or EAD validity, you can show your Form I-797C receipt notice that refers to the 180-day extension, along with your qualifying EAD (and also your unexpired Form I-94 , if you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes). This document combination is sufficient proof of an up to 540-day automatic extension, counting from the expiration date on your current EAD.

If you are a renewal applicant and your 180-day automatic extension expired before May 4, 2022, you can still receive the benefit of the temporary increase of the automatic extension period.

Your employment authorization and / or EAD validity will automatically resume beginning on May 4, 2022, for any time remaining within the up to 540-day automatic extension period. To calculate whether there is any automatic extension time remaining, count 540 days from the expiration date stated on the front of the EAD. (If you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes, count up to either 540 days or the expiration date on Form I-94, whichever is earlier.)


Why was this policy made?


According to USCIS, this automatic extension will give USCIS more time to manage its staffing shortages, implement additional efficiencies, and help the agency achieve three-month processing times for EAD applications by the end of fiscal year 2023.

USCIS Director Ur M. Jaddou stated that the rule “will provide those noncitizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families, while avoiding further disruption for US employers.”


Where can I find more information?


For more information about this new rule, please check out our helpful links below.


Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.


Helpful Links


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