If you have been following immigration news and are wondering how changes in Washington might affect your workforce, you are not alone. Senate Joint Resolution 8 (S.J. Res. 8) in the 119th Congress aims to undo a USCIS regulation that grants certain eligible applicants a 540-day automatic extension of their Employment Authorization Document (EAD). The 540- day EAD extension will continue to be in effect until the resolution is finalized which requires votes from both houses and the President’s signature. If ultimately successful, this resolution will have far-reaching implications for employers in the United States, as well as for foreign nationals who rely on the EAD to continue working while their renewal applications are pending. This blog post provides an overview of the rule’s background, its intended purpose, and what might happen if the resolution moves forward.
History of the Regulation
As outlined in a prior post, the concept of automatic extension of EADs was first introduced in 2016 to address extended processing times that were creating gaps in employment authorization solely based on government agency processing delays where simple EAD extension applications could take more than 8 months to process. Backlogs created in part by the COVID-19 pandemic and significant increases in the volume of EAD application filings meant that USCIS officers were not adjudicating EAD extensions even within 80-day auto extension window.
As processing times continued to increase, DHS issued two updates one in 2022 and one in 2024, each temporarily increasing the automatic extension period from 180 days to 540 days. This change was designed to prevent work authorization gaps for foreign nationals with valid status and work authorization in the U.S., while at the same time reducing burdens on U.S. employers who might otherwise risk losing critical employees due to delays beyond their control. The 540-day provision was meant to stabilize the workforce and minimize disruptions caused by prolonged USCIS processing times. DHS finalized a permanent increase of the automatic extension period of the 540 days effective January 13, 2025. It is this Final Rule that the Congressional Resolution is “disapproving”.
Who Does This Rule Apply To?
The 540-day auto-extension rule applies to individuals who are already in a valid legal status and eligible for the work authorization benefits. To qualify, these foreign nationals must:
- File for the renewal of their EAD before the current one expires.
- File the extension in the same category as their expiring EAD.
- Maintain an underlying status that continues to allow for employment authorization.
- Apply for an extension in a qualifying eligibility category.
It is important to highlight that this rule does not apply to individuals who are undocumented. It is limited to those who are in the U.S. in a valid status and who have already been granted, and remain eligible for, work authorization in specific categories.
Importance of Creating Efficiencies in USCIS
By granting a 540-day automatic extension, USCIS aimed to:
- Mitigate workforce gaps: Employers can retain critical staff members without facing sudden employment interruptions.
- Reduce uncertainty: Employees and employers can better plan around renewal timelines.
- Alleviate administrative strain: Less frequent status changes and queries to help reduce the broader backlog and allow USCIS to allocate resources more effectively.
In effect, the expanded timeline is a measure meant to streamline operations and offer relief to both workers and employers grappling with significant processing delays.
The Legislative Process for S.J. Res. 8
The joint resolution was introduced in the Senate with the intention of disapproving the USCIS regulation through the legislative process. To become effective law, a joint resolution must typically:
- Pass the Senate.
- Pass the House of Representatives.
- Be signed by the President (or have a veto overridden).
At the time of writing, the resolution was just recently introduced in the Senate and is in committee, progression of the resolutions may be viewed on Congress.gov. The next steps include committee review, amendments, and votes in both legislative chambers. Since a joint resolution has the force of law, its passage could immediately invalidate the targeted USCIS regulation if it garners enough support, and the President signs off on it.
Immediate Impact: Until the resolution successfully clears all these hurdles, the existing 540-day auto-extension rule remains in place. Even if passed, legal challenges or administrative delays might affect how quickly any change would take effect.
Additional Context for Employers
- Potential Impact on U.S. Employers
- Workforce Stability: Employers could face staffing gaps and lose skilled workers if the 540-day extension is rescinded while USCIS continues to struggle with processing delays.
- Administrative Burdens: Human Resources departments would face chaotic challenges in terms of Form I-9 reverifications, as unwinding existing extensions will be almost impossible for employers to identify and action.
- Applicability to Documented Foreign Nationals with valid legal status in the U.S.
- The 540-day auto-extension applies strictly to individuals who are already legally authorized to work in the U.S. and are seeking to maintain that authorization. This regulation does not extend to undocumented individuals. Not all EADs card benefit for auto extensions. In fact, DACA recipients and F-1 STEM OPT c(3)(C) applicants were never eligible for the 540 day extension.
- Maintaining Legal Status
- The rule covers those who continue to meet eligibility requirements for their EAD category. If the rule is nullified, these foreign nationals could be forced out of work before renewals are processed.
Senate Joint Resolution 8 signals potential changes for employers and foreign national workers who rely on the 540-day EAD auto-extension. While it remains to be seen whether the resolution will pass through both chambers of Congress and be signed into law, it is crucial for stakeholders to stay informed and consider advocacy pathways to promote business friendly policies. A reversal of the 540-day extension could exacerbate current processing delays and lead to workforce disruption.
Whether or not the resolution advances, understanding its implications will help businesses remain proactive and compliant in an evolving immigration landscape. The Seyfarth Global and Immigration team will continue to monitor legislative developments and provide updates. For guidance and preparing contingency plans please contact the authors, Mahsa Aliaskari and Dawn Lurie or your Seyfarth legal team.
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