In the first of what may be a number of regulatory initiatives taken by the lame-duck Biden administration to protect immigration benefits from elimination by the Trump administration that will take office on January 20, 2025, the Department of Homeland Security (DHS) introduced today a final rule that will make permanent the temporary increases in the automatic extension period of certain Employment Authorization Documents (EADs) from up to 180 days to up to 540 days.

Please note that this 540-day extension is only available to applicants for renewals of already issued EADs. It is not available to first-time EAD applicants. The extension period is counted 540 days from the expiration date listed on the current EAD card that is being renewed, provided the renewal application was timely filed before that expiration date.

This final rule will become effective on January 10, 2025, 30 days after its publication in the Federal Register.

As we reported in our Alert of April 8, 2024, DHS previously issued a temporary final rule that increased the automatic extension period for certain Form I-766 employment authorization documents (EADs) from up to 180 calendar days to up to 540 calendar days. This rule was effective immediately and was intended to prevent already work-authorized noncitizens from experiencing an interruption in their employment because of USCIS processing delays. The automatic 540-day extension was a temporary measure and was set to expire on September 20, 2027. The extension is now permanent and is not subject to an expiration date.

DHS notes that the automatic extension period for eligible renewal EAD applications is up to 540 days.  An EAD that has an expiration date that has been reached is now considered unexpired when combined with a Form I-797C receipt notice indicating a timely filed EAD renewal application.

DHS has provided an Automatic Extension Eligibility Calculator that allows employees and their employers to confirm their eligibility for the automatic EAD extension.

The 540-day automatic EAD extension will apply to a variety of EAD applicants, including adjustment of status applicants, H-4 spousal EAD applicants with an unexpired Form I-94 reflecting H-4 status, Temporary Protected Status (TPS) applicants, refugees, and asylees. Persons wishing to benefit from the permanent automatic extension rule should note the following:

• • EAD extensions available to certain H-4 spouses of H-1B nonimmigrants are either 540 days or until the expiration of their H-4’s I-94, whichever is sooner. If the H-4 spouse’s I-94 expires on the same date as the H-4 EAD, the 540-day extension will not apply.
  • EADs applied for in connection with F-1 Student Optional Practical Training are not eligible for 540-day automatic extensions. Please note, however, that timely filed STEM EAD filings will allow an extension of 180 days or until adjudication, whichever is earlier.

DHS has indicated that acceptable proof of the automatic extension of employment authorization and/or EAD validity for I-9 Employment Eligibility Verification and other purposes consists of a Form I-797C receipt notice for the I-765 EAD application that refers to a 180-day extension or a 540-day extension, as well as an already issued EAD for the same category. If H-4 spouses have an unexpired Form I-94 reflecting H-4 status and have timely filed an H-4 EAD renewal application, their work authorization will be automatically extended up to the end date of their Form I-94, 540 days from their current card expiration, or the approval/denial of their renewal application, whichever is earlier.

T&S Takeaway

Today’s final rule making permanent the 540-day extension of the automatic extension EAD period for certain EAD renewal applicants is a welcome development and possibly reflects the current administration’s efforts to preserve some of the immigration benefits introduced in the past four years before they are threatened by the new presidential administration. It is possible that the coming weeks will see further regulatory action of this type.