Today, United States Citizenship and Immigration Services (USCIS) issued a temporary final rule that increases the automatic extension period for certain employment authorization documents (EADs) from up to 180 calendar days to up to 540 calendar days. This rule is effective immediately and is intended to prevent already work-authorized noncitizens from experiencing an interruption in their employment because of USCIS processing delays. The USCIS had previously authorized a similar 540-day extension, but this expired on October 26, 2023. The automatic 540-day extension is a temporary measure and will expire on September 20, 2027.
Please note that this 540-day extension is only available to applicants for renewal 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.
The 540-day extension applies to eligible applicants who timely and properly filed EAD renewal applications on or after October 27, 2023. The renewal application must still be pending on April 8, 2024, the date of the publication of the rule. The 540-day extension also applies to eligible EAD renewal applicants who timely and properly file their Form I-765 application during a 540-day period that begins with the rule’s publication on April 8, 2024, and ends on September 30, 2025. Renewal applications filed after September 30, 2025, will not be eligible for a 540-day extension. All such persons covered by the rule may continue working with authorization for a maximum period of 540 days, even though USCIS has not yet approved their EAD applications and issued a new EAD. The work authorization category under which the EAD renewal application is filed must be the same as that of the original EAD.
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. Students in F-1 status who have been granted Optional Practical Training (OPT) will not be eligible for the 540-day extension, but may continue to receive 180-day extensions.
USCIS 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. H-4 spouses must also show an unexpired Form I-94 reflecting H-4 status and 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. USCIS will begin issuing Form I-797C receipts with the appropriate 540-day notation starting today.
T&S Takeaway
Today’s rule implementing a 540-day extension of the automatic extension EAD period for certain EAD renewal applicants is a welcome development and reflects the current administration’s creditable recognition that current processing times for I-765 applications (which can be as long as 9 months or more) are unacceptable and cause many employees who are eligible to accept employment lawfully to have to interrupt their employment.
