Immigration Law Insights

USCIS recently implemented a new temporary rule that reinstates the opportunity for a 540-day Automatic Employment Authorization Document (EAD) extension for certain foreign nationals seeking to renew their EAD. USCIS had implemented a similar automatic EAD extension in May 2022 but reverted back to a 180-day automatic extension period on October 26, 2023. The new rule took effect on April 8, 2024. 

USCIS announced the temporary rule to prevent gaps in employment authorization and documentation during the renewal process. The increased extension is welcome news for many foreign nationals who routinely face average processing times of more than a year when renewing EADs. The 540-day extension runs from the end of the foreign national’s existing EAD authorization period. 

Importantly, the new automatic extension does not apply to all EAD renewal applicants. The following criteria must be satisfied in order to qualify:

• The applicant must have timely filed Form I-765 for an EAD renewal before their current EAD expires, except in very limited circumstances;
• The renewal must be under a category that is eligible for an automatic extension (available here);
• The category listed on the applicant’s existing EAD must match the class requested on their Form I-797C Receipt Notice.

Some of the more common EAD categories affected by the change include individuals with a pending Adjustment of Status application, Refugees, and Asylees. Historically, the rule would also have affected spouses of E-2 and L-1 principal foreign nationals. However, E-2 and L-2 spouses are now eligible to work incident to their status with a spousal designation on their I-94. Most H-4 spouses who are eligible for work authorization will not see relief under the new rule because their automatic extension would be limited to their I-94 validity period. 

If an applicant is eligible for the 540-day automatic extension, employers can accept the following documents for I-9 verification:

1. An expiring or expired EAD card; and
2. An I-797C, Receipt Notice confirming a timely filed Form I-765 EAD renewal application.

Receipt Notices for eligible EAD renewals filed on or after April 8, 2024, should include an explanation confirming the 540-day extension. USCIS has confirmed that although Receipt Notices for applications filed between October 27, 2023, and April 8, 2024, will only refer to a 180-day extension, they should be treated as eligible for the temporary rule’s full extension period. 

Burr and Forman's Immigration team regularly counsel businesses on EAD applications and Form I-9 compliance. If your business is in need of advice on issues related to employment authorization, contact Melissa Azallion Kenny (MAKenny@burr.com), Anna Scully (AScully@burr.com), or Jon Eggert (JEggert@burr.com) on the Burr and Forman Immigration team.