December 6, 2022

Volume XII, Number 340

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December 06, 2022

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December 05, 2022

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DHS Increases Automatic Extension of Work Authorizations for Certain Individuals

As of May 4, 2022, the Department of Homeland Security (DHS) is increasing the automatic extension of work authorization from 180 days to 540 days for certain individuals.

Currently, certain individuals with expiring employment authorization documents (EADs) can continue working for an additional 180 days as long as they have timely submitted for a replacement EAD and have been issued a receipt notice, I-797C, in the same employment eligibility category. Because actual processing times for replacement EADs currently is up to 11.6 months, a significant number of employees are not in receipt of their replacement EADs within the 180-day period and cannot legally continue to work. This DHS rule change, effective May 4, will extend the 180-day period to 540 days from the card expiration date.

Applicants who are already eligible for 180-day extensions also qualify for the new 540-day extension beyond the expiration date of their EADs. The categories include those with pending Adjustment of Status applications, spouses of E, L, and H visa holders (with unexpired Form I-94, Arrival/Departure Records), applicants for asylum, and individuals with Temporary Protected Status who may also be eligible for certain per-country automatic extensions.

To be eligible, applicants must continue to also:

  • Have currently pending EAD renewal applications that were timely filed (even if the individual’s 180-day extension has already expired); or

  • Timely file an EAD renewal application between May 4, 2022, and October 26, 2023.

For those already in an authorization gap, employment authorization will resume on May 4, 2022, and continue up to 540 days from the date the EAD expired. Unfortunately, the new rule does not cure any unauthorized employment that may have accrued prior to May 4, 2022.

After May 4, 2022, to complete a Form I-9 Employment Authorization Verification for someone entitled to the new 540-day extension, the individual must present the receipt notice showing a timely filed EAD renewal in the same category as the expired EAD. DHS will be updating its webpage with information about the 540-day extension. It will recommend that a copy of the webpage be attached to the I-9. If an individual has been terminated because their 180-day extension expired, the employer may do a reverification or a new Form I-9.

In the new rule, DHS outlines all the reasons for the backlogs, including fiscal problems, staffing problems, increases in filings, and the COVID-19 pandemic. DHS says it hopes that, by the time the rule’s provisions expire, processing times will have returned to more normal levels – the agency’s prior 90-day processing goal.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 124
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About this Author

Michael H. Neifach Jackson Lewis Employment visa Lawyer border security matters attorney
Principal

Michael Neifach is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is a recognized leader on immigration, visa and border security matters, and he is Co-Leader of the firm's Immigration practice group.

Mr. Neifach has held senior positions at the White House Homeland Security Council, U.S. Department of Homeland Security, and U.S. Immigration and Customs Enforcement (ICE). He served as General Counsel at ICE from July 2007 through January 2009. Following his government service, Mr. Neifach oversaw...

(703) 483-8300
Amy Peck Immigration Attorney Jackson Lewis
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

(402) 391-1991
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