May 22, 2022

Volume XII, Number 142


May 20, 2022

Subscribe to Latest Legal News and Analysis

What USCIS’ EAD Automatic Extension Increase Means for Your Employees

On May 4, 2022, U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) that increases the automatic extension period for certain Employment Authorization Document (EAD) categories up to 540 days, effective immediately and valid through Oct. 15, 2025.

Historically, certain EAD categories were only eligible for an extension up to 180 days. The TFR will help avoid employment gaps for foreign nationals with pending EAD applications.

What does the Temporary Final Rule mean for your employees?

  • If an employee’s automatic extension lapsed prior to May 4, 2022, the employment authorization automatically resumed, and the EAD validity period began on May 4, 2022 and will continue up to 540 days from the expiration of the EAD card.

  • If an employee’s EAD card has expired but the employee still has time remaining in the 180-day extension, they are now able to receive an additional 360 days, for a total of 540 days past their EAD “Card Expires” date.

  • If an employee’s EAD card has not expired yet and the Form I-765 is still pending, then the employee will receive an automatic extension of up to 540 days once their EAD card expires before their Form I-765 is adjudicated.

  • If an employee files an EAD renewal application between May 4, 2022 and Oct. 26, 2023, then the employee’s EAD will automatically be extended up to 540 days if their EAD card expires before their Form I-765 is adjudicated.

Are my employees eligible for the 540-day extension?

To qualify for the extension, the employee must:

  • Fall within the following categories: A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19. (See below for guidance on A17, A18 and C26)

  • Have timely filed a Form I-765 Application for Employment Authorization, before their current EAD expired.

  • Have an I-797C, Notice of Action for the filed Form I-765 that contains the same category code as their expiring EAD.

The TFR will no longer apply to applications after Oct. 26, 2023 and USCIS will return the 180 automatic extension rule.

Guidance for Category Codes A17, A18 and C26

For employees who fall within EAD categories A17 (E spouses), A18 (L-2 spouses) and C26 (H-4 spouses), the extension period cannot exceed the Form I-94 end date. Employees will need to present their expired EAD, their I-797C Notice of Action and Form I-94 to determine the extended expiration date. In these instances, the extension may be greater than 180 days but fewer than the additional 360 days, as the EAD must expire when the Form I-94 ends.

What does the TFR mean for I-9 Compliance?

If your current or new employee’s EAD has expired, please follow these steps:

  1. Determine if the employee qualifies for an automatic extension by reviewing the employees EAD card, Form I-797C, Notice of Action (Receipt for timely field EAD extension) and if applicable, Form I-94.

  2. Calculate whether there is any automatic extension time remaining. Count 540 days from the expiration date stated on the front of the EAD.

  3. Update the employee’s Form I-9 no later than the date the employee’s 180-day extension ends:

    • Enter the EAD in the document title field.

    • Enter the receipt number from Form I-797C, Notice of Action, in the Document Number field.

    • In the Expiration Date field, enter the date 540 days from the “Card Expires” date on the EAD if the “Received Date” on Form I-797C is on or before Oct. 26, 2023 or enter the date 180 days from the “Card Expires” date on the EAD if the “Received Date” on Form I-797C is after Oct. 26, 2023.

It is important to note that the TFR does not cure any unauthorized employment that may have occurred before the issuance of this rule.

© 2022 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume XII, Number 133

About this Author

Jazmin E. Harris Cincinnati Labor and Employment Attorney Dinsmore and Shohl LLP

Jazmin focuses her practice on labor, employment, and immigration law. She represents clients before the Department of Homeland Security, U.S. Citizenship and Immigration Services, the National Visa Center, and the U.S. Immigration Court.  Jazmin educates, advises and assists clients as they navigate the complex Immigration process.

Katie P. Jacob, Dinsmore, Labor Compliance Lawyer, non-immigrant filings Attorney

Katie Jacob is member of the Immigration Practice Group. She represents businesses, universities, families and individuals in a wide variety of immigration matters. Katie's experience includes handling all non-immigrant filings but not limited to H-1B, L-1, O-1, TN and E-2. She also is proficient in handling immigration filings including PERM Labor Certification (Special Handling for Colleges/Universities), National Interest Waiver Petitions, Extraordinary Ability Petitions, Outstanding Professor/Researcher Petitions, and Multi-National Manager/Executive Petitions.

(513) 977-8591