Immigration Law Insights

On May 4, 2022, the Department of Homeland Security (“DHS”) issued a rule temporarily increasing the Employment Authorization Document (“EAD”) automatic extension period for certain renewal applicants. Under the temporary rule, the automatic extension was increased from 180 days to up to 540 days to address historically long processing times. 

USCIS recently announced plans to revert back to 180-day automatic extensions, starting October 26, 2023. The following criteria must be satisfied to qualify for the automatic extension:

• The applicant must be renewing their EAD in the same work authorization category;
• The applicant must file Form I-765 before their current EAD card expires (or within the applicable filing period for TPS applicants); and
• The work authorization category must not be dependent on the adjudication of another benefit.

Some of the more common EAD categories that will be 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. 

Foreign nationals that timely file their EAD renewal application in an eligible category between May 4, 2022, and October 26, 2023, will continue to receive the full 540-day extension. Importantly, the automatic extension ends immediately if the renewal application is denied. 

USCIS has created a calculator to help applicants determine their new EAD Expiration Date, which can be found here.

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

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

The Burr and Forman immigration team regularly counsels businesses on EAD applications and Form I-9 compliance. If your business needs advice on issues related to employment authorization, contact Melissa Azallion Kenny, Anna Scully, or Jon Eggert on the Burr and Forman immigration team.