EAD Renewal Still Pending? 540-Day Automatic Extension

U.S. Citizenship and Immigration Services (USCIS) is experiencing significant delays renewing employment authorization documents (EADs). To prevent a lapse in employment authorization in these circumstances, upon filing a Form I-765, Application for Employment Authorization, the automatic extension of employment authorization is being increased to 540 days.

Previous regulations provided that upon filing a Form I-765 to renew an EAD, the applicant would get an automatic extension of work authorization for 180 days from the expiration date stated on the old EAD.

According to a new USCIS rule, you qualify for this 540-day automatic extension if you:

  • Properly file Form I-765 for a renewal of your EAD before your last EAD expired, and
  • Are otherwise eligible for a renewal, which means that:
    • Your renewal application is under a category that is eligible for an automatic extension (see the list of categories below); and
    • The category on your last EAD matches the “Class Requested” listed on your Form I-797C Notice of Action, Receipt Notice, for the new I-765. (Certain exceptions apply).

If you file a Form I-765 renewal application on or after May 4, 2022, your Form I-797C Notice of Action receipt notice will have information regarding the 540-day automatic extension. If you filed before that date, your I-797C referred to the old 180-day extension. But in either case the old EAD and the new Form I-797C will generally serve as acceptable proof of employment authorization for purposes of Form I-9, Employment Eligibility Verification. 

This is a temporary measure. It will not apply to I-765s filed after Oct. 26, 2023. The normal 180-day automatic extension period will apply.

For guidance on completing Form I-9 covering automatic extensions and proof of employment authorization for hiring, rehiring, and reverification, as well as all other Form I-9-related guidance, visit I-9 Central.

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 applicationDescription
(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

Note that F-1 students applying for the 24-month STEM OPT extension are not covered by this rule.

Sources

USCIS, Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants, 87 F.R. 26614 (May 4, 2022) (temporary final rule)

USCIS, Automatic Employment Authorization Document (EAD) Extension (May 4, 2022)

Leave a comment

Your email address will not be published.