Our previous article entitled, USCIS SEEKS TO ADDRESS DELAYS THROUGH EXPANSION OF PREMIUM PROCESSING, discussed much anticipated upcoming changes to USCIS’ premium processing service including processing the Form I-765, Application for Employment Authorization, within 30 days of filing for a fee of $1,500. While we eagerly wait for that change to be implemented, USCIS has taken another step to address its tremendous backlogs with its temporary final rule providing that the automatic extension period applicable to expiring employment authorization documents (EAD) for certain applicants who timely file Form I-765, will be increased from 180 days to up to 540 days from the expiration date listed on the EAD.
To provide some background, a foreign national’s immigration status dictates whether s/he is eligible to accept employment in the U.S. Some foreign nationals, such as a spouse in L-2 status, are authorized to work “incident to status,” meaning that the immigration status itself grants work authorization. See our article entitled, NEW I-94 ADMISSION CODES FOR ‘E’ and ‘L’ DERIVATIVE BENEFICIARIES. Such an individual would not need to apply for the EAD in order to work in the U.S. Other foreign nationals must first apply for an EAD and can only accept employment when their application is approved by USCIS. EADs are approved for specific periods of time and these individuals must continue to renew their EAD in order to continue working in the U.S. Employers must also properly complete Form I-9 for each individual they hire for employment in the U.S. and must continue to update their I-9 records to show continued work authorization or be forced to terminate employment if valid work authorization cannot be presented.
Certain EAD renewal applicants (listed on USCIS’ website), who have filed Form I-765, qualify for an automatic extension of their expiring EADs while their application is pending. To qualify for this automatic extension, the applicant must have properly filed their Form I-765 before the expiration of the current EAD and they must be eligible for a renewal in that the renewal application must be under a category that is eligible for an automatic extension and the Form I-765 must have been filed requesting an extension of employment authorization based on the same category as the expiring/expired EAD. The automatic extension period was up to 180 days from the expiration date stated on the EAD. Applicants could present their employers with the receipt notice proving that an EAD renewal application had been timely filed and continue their employment for another 180 days from the EAD expiration date. In recent times, those 180 days have proven to be quite insufficient for applicants as USCIS’ processing times continued to increase and new EADs were not processed before the end of the 180-day automatic extension period resulting in applicants losing their jobs and employers scrambling to find replacement workers. USCIS blamed the delays on operational challenges exacerbated by COVID-19 together with a sudden increase in Form I-765 applications and has predicted that their processing rate could result in a median processing time of 14.2 months for all Form I-765 renewals by the end of December 2022.
Seeking to prevent the immediate harm to EAD renewal applicants and their employers, on May 4, 2022, USCIS published its temporary final rule which became effective upon publication, announcing that the automatic extension period will be increased from 180 days to 540 days. To be eligible for this 540-day automatic extension, the same rules apply as applied for the 180-day extension. The applicant must have been issued an EAD in one of the categories eligible for automatic extensions; s/he must have filed the renewal application prior to the EAD expiration date; the application must be based on the same category as the existing EAD; and the Form I-765 must still be pending (not denied). If the application is denied, the extension period will automatically end.
This new rule applies to:
- Applicants who have an EAD renewal application pending as of May 4, 2022 and whose current EAD is still valid. These applicants will receive an automatic 540-day extension starting on the date the current EAD expires.
- Applicants who filed renewal applications well prior to May 4, 2022 and whose automatic 180-day extension period already expired prior to May 4, 2022. These applicants’ employment authorization will resume effective May 4, 2022, and will continue for a period of up to 540 days from the date their EAD expired, as shown on the face of the EAD.
- Applicants who file Form I-765 from May 4, 2022 to October 26, 2023, when this temporary increase in the automatic extension period will come to an end.
On October 27, 2023, the automatic extension period will revert to 180 days.
The Handbook for Employers (M-274) at Section 4.4 has been updated to provide guidance to employers for updating the Forms I-9 to include the extended 540-day employment authorization period.
While the temporary fix provided by USCIS through this temporary final rule is much appreciated, the hope is that USCIS can truly address its severe operational challenges and can also implement premium processing for EAD applications. It must be noted that the temporary final rule does not address the backlogs faced by applicants applying for their initial EADs who also stand to lose employment opportunities if employers cannot afford to wait several months for the individual to be able to commence employment.
