Seyfarth Synopsis: U.S. Citizenship and Immigration Services (USCIS) recently announced a Temporary Final Rule extending the automatic extension period for certain Employment Authorization Document (EAD) renewal applicants from up to 180 days to up to 540 days.
On April 4, 2024, the U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) extending the automatic extension period for certain Employment Authorization Document (EAD) renewal applicants from up to 180 days to up to 540 days. Unfortunately, not all EAD categories will benefit from this TFR, but it should still provide relief to a significant number of foreign nationals. The extension benefits individuals who submitted their EAD renewal applications (Form I-765) timely — meaning prior to the current EAD expiration — starting from October 27, 2023, and whose applications remain pending, and individuals who timely file their EAD renewal applications from April 8, 2024 through September 30, 2025.
Key Takeaways:
1. Benefit two categories of EAD applicants within specific timeframes:
a. Applicants who timely and properly submitted their Form I-765 applications on or after October 27, 2023, provided the application remained pending as of April 8, 2024.
b. Applicants who timely and properly file their Form I-765 applications between April 8, 2024 and September 30, 2025.
2. To be eligible for the 540-day auto-extension rule, an applicant must:
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- Timely and accurately file Form I-765 for EAD renewal before the current EAD expires (except for certain applicants with Temporary Protected Status (TPS) or a pending TPS application).
- The requested EAD category must be eligible for an automatic extension, and must match the category of the current EAD (except for A12 or C19 categories, which are interchangeable).
- For H-4, E, and L-2 dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status is required to qualify for the auto-extension rule.
3. F-1 STEM OPT EAD extension applicants do not benefit from this TFR. They remain eligible for the 180-day auto-extension if they timely and properly file their STEM OPT EAD applications.
Categories Eligible for Automatic Extensions
The below is a non-exhaustive list of categories eligible for a 540-day automatic extension:
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Eligible Categories |
|
|
(c)(9) |
Pending Adjustment of Status under Section 245 of the Act |
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(c)(26) |
Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status |
|
(a)(17) |
Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status* |
|
(a)(18) |
Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status* |
|
(a)(3) |
Refugee |
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(a)(5) |
Asylee |
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(a)(12) |
Temporary Protected Status (TPS) Granted |
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(c)(8) |
Asylum Application Pending |
|
(c)(19) |
Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”. |
More information on the eligible categories can be found here.
Proof of an Automatic Extension
Employers should inform their I-9 compliance team and refer to this webpage when determining whether a Form I-797C, Notice of Action, if presented with the facially expired EAD, is acceptable to verify work authorization for Form I-9. Employers may attach a copy of the webpage with the employee’s Form I-9 to document the extension of employment authorization and/or EAD validity. For guidance on completing Form I-9 covering automatic extensions and proof of employment authorization for hiring, rehiring, and reverification, as well as all other Form I-9-related guidance, please visit I-9 Central.
Seyfarth Shaw will continue to monitor any further developments. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.
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