Today the U.S. Citizenship and Immigration Services (USCIS) announced a temporary rule that will amend regulations related to expiring Employment Authorization Documents (EADs). Specifically, USCIS is increasing the automatic extension period granted to certain EAD renewal applicants by approximately one year. Beginning May 4, 2022, eligible noncitizens with pending EAD renewal applications will receive an automatic extension of up to 540 days (approximately 18 months) past EAD expiration, rather than 180 days.
The new rule reflects an acknowledgment by USCIS that it has been unable to timely adjudicate EAD applications, leading to loss of work authorization and disruption of operations for U.S. employers. Processing times have drastically increased since 2019, and the existing 180-day automatic extension is insufficient to prevent gaps in work authorization as originally intended. The longer automatic extension period—which will be granted through October 26, 2023—will provide continuity for noncitizen employees and U.S. employers while USCIS increases staffing and improves efficiencies in order to meet its recently announced goal of processing EAD applications within three months by the end of FY 2023.
The up to 540-day extension only applies to those EAD categories currently eligible for a 180-day extension pursuant to 8 CFR 274a.13(d), such as refugees, asylees and asylum applicants, TPS beneficiaries, and applicants for Adjustment of Status. Spouses of certain H-1B principal nonimmigrants—generally, those with an approved I-140 petition—are also eligible if they possess an unexpired I-94 showing H-4 nonimmigrant status, but only for the duration of the I-94, if shorter than 540 days.
Students in F-1 status applying for the 24-month STEPM OPT extension are not included in this temporary rule, because the 180-day automatic extension of work authorization granted in that circumstance is from a different regulation, 8 CFR 274a.12(b)(6)(iv), and is subject to other conditions. In addition, this rule provides no benefit to applicants awaiting an initial EAD or their first EAD in a new category.
The effect of the new rule on eligible EAD renewal applicants is set out below:
|
Circumstances |
Effect of new temporary rule |
|
Pending EAD renewal application, current EAD expired, 180-day period has lapsed (no current work authorization) |
Additional period of work authorization beginning May 4, 2022, and lasting up to 540 days from EAD expiration, can resume employment using expired EAD and USCIS receipt notice |
|
Pending EAD renewal application, current EAD expired, currently in 180-day automatic extension period |
Additional 360 days of work authorization for a total of up to 540 days from EAD expiration with existing receipt notice |
|
Pending EAD renewal application, current EAD still valid |
Automatic extension of up to 540 days past expiration of current EAD, even though USCIS receipt notice says 180 days |
|
Current EAD valid, planning to file renewal application after May 4, 2022, but before October 27, 2023
|
Automatic extension of up to 540 days past expiration of current EAD, which will be reflected in USCIS receipt notice
|
The automatic extension will end upon notification of a decision on the EAD renewal application or the end of the 540-day period, whichever comes first. For H-4 EAD applicants, however, the automatic extension is contingent upon a valid I-94 and therefore will end earlier if the I-94 expires earlier. Beginning with EAD renewal applications filed on October 27, 2023, the automatic extension of employment authorization will revert to the previous 180-day period.
If you have questions about your eligibility for this benefit, please contact your T&S legal representative.
