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Thursday, May 05 2022
Automatic Employment Authorization Document (EAD) Extension

Certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring employment authorization and/or EADs while their application is pending. You qualify for this extension if you:

  • Properly filed Form I-765 for a renewal of your employment authorization and/or EAD before your current EAD expired, and
  • Are otherwise eligible for a renewal, which means that:
    • Your renewal application is under a category that is eligible for an automatic extension (see the list of categories below); and
    • The Category on your current EAD matches the “Class Requested” listed on your Form I-797C Notice of Action, Receipt Notice. (Note: If you are a Temporary Protected Status (TPS) beneficiary or pending applicant, your EAD and this Notice must contain either the A12 or C19 category, but the categories do not need to match each other. In addition, for H-4, E, and L-2 dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status (including E-1S, E-2S, E-3S, and L-2S class of admission codes) must accompany Form I-797C when presenting proof of employment authorization to an employer for Form I-9, Employment Eligibility Verification, purposes).

Automatic Extension Time Period—Temporary Increase to up to 540 Days

Normally, DHS regulations provide for an automatic extension period of up to 180 days from the expiration date stated on the EAD. However, DHS has published a temporary final rule increasing the extension period. Effective May 4, 2022, DHS is temporarily increasing the extension period and providing up to 360 days of additional automatic extension time, for a total of up to 540 days, to eligible renewal applicants. The automatic extension time is counted from the expiration date of the employment authorization and/or EAD. This temporary increase is available to eligible renewal applicants with pending applications if you filed your Form I-765 renewal application either:

  • Before May 4, 2022, and your 180-day automatic extension has since expired;
  • Before May 4, 2022, and your 180-day automatic extension has not yet expired; or
  • Between May 4, 2022 and Oct. 26, 2023, inclusive of these dates.

If you file your Form I-765 renewal application after Oct. 26, 2023, the normal 180-day automatic extension period will apply.

Proof of an Automatic Extension

The automatic extension period, including the temporary increase to the extension period, is provided to certain renewal applicants to help prevent gaps in employment authorization and documentation.

If you file a Form I-765 renewal application on or after May 4, 2022, USCIS will send you a Form I-797C Notice of Action receipt notice that has information regarding the up to 540-day automatic extension. If you are eligible for the automatic extension, this receipt notice, together with your expired EAD (and your unexpired Form I-94, if you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes) will serve as acceptable proof of employment authorization and/or EAD validity during the up to 540-day automatic extension period. 

If you filed a Form I-765 renewal application before May 4, 2022, you should have received a Form I-797C Notice of Action receipt notice that describes the automatic extension period of up to 180 days. You will not receive a new I-797C receipt notice reflecting the increased employment authorization and/or EAD automatic extension period. However, Form I-797C receipt notices that refer to an up to 180-day automatic extension will still meet the regulatory requirements for completing Form I-9, including if your 180-day automatic extension expired prior to May 4, 2022.

To present acceptable proof of the automatic extension of employment authorization and/or EAD validity, you can show your Form I-797C receipt notice that refers to the 180-day extension, along with your qualifying EAD (and also your unexpired Form I-94, if you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes). This document combination is sufficient proof of an up to 540-day automatic extension, counting from the expiration date on your current EAD. 

If you are a renewal applicant and your 180-day automatic extension expired before May 4, 2022, you can still receive the benefit of the temporary increase of the automatic extension period. Your employment authorization and/or EAD validity will automatically resume beginning on May 4, 2022, for any time remaining within the up to 540-day automatic extension period. To calculate whether there is any automatic extension time remaining, count 540 days from the expiration date stated on the front of the EAD. (If you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes, count up to either 540 days or the expiration date on Form I-94, whichever is earlier.) Employers should complete Form I-9 using the same guidance applicable to those who present a Form I-797C Notice of Action receipt notice indicating that the Form I-765 renewal application was filed before May 4, 2022, and that states the normal 180-day automatic extension period.

An individual’s automatic extension period may terminate prior to the maximum period (either 540 or 180 days) either automatically when USCIS issues a denial of the applicant’s Form I-765 renewal application or upon notice.

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, visit I-9 Central.

Categories Eligible for Automatic Extensions

The following employment eligible categories are eligible for an automatic extension:

The eligibility category you listed on your Form I-765 renewal application

Description

(a)(3)

Refugee

(a)(5)

Asylee

(a)(7)

N-8 or N-9

(a)(8)

Citizen of Micronesia, Marshall Islands, or Palau

(a)(10)

Withholding of Deportation or Removal Granted

(a)(12)

Temporary Protected Status (TPS) Granted

(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*

(c)(8)

Asylum Application Pending

(c)(9)

Pending Adjustment of Status under Section 245 of the Act

(c)(10)

Suspension of Deportation Applicants (filed before April 1, 1997)
Cancellation of Removal Applicants
Special Rule Cancellation of Removal Applicants Under NACARA

(c)(16)

Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)

(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”.

(c)(20)

Section 210 Legalization (pending I-700)

(c)(22)

Section 245A Legalization (pending I-687)

(c)(24)

LIFE Legalization

(c)(26)

Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status

(c)(31)

VAWA Self-Petitioners

* For more information on the options available to demonstrate employment authorization for E spouses and L spouses, see E-1 Treaty Traders page (Family of E-1 Treaty Traders and Employees section), E-2 Treaty Investors page (Family of E-2 Treaty Investors and Employees section), E-3 Certain Specialty Occupation Professions from Australia page (Family of E-3 Nonimmigrant Workers section), L-1A Intracompany Transferee Executive or Manager page (Family of L-1 Workers section), or L-1B Intracompany Transferee Specialized Knowledge page (Family of L-1 Workers section). 

NOTE: Individuals with a TPS-based EAD may receive an automatic extension of their EAD:

  • Through publication of a Federal Register notice extending the TPS designation of the individual’s country, if the Federal Register notice also authorizes an automatic extension of covered individuals’ existing EADs; or
  • Through this  automatic extension.
Posted by: Christopher M. Pogue, Esq AT 10:07 am   |  Permalink   |  Email
The Pogue Law Firm LLC
Of Counsel with the Fleischer Law Firm LLC
810 Sycamore Street, 2nd Floor - Cincinnati, Ohio 45202            



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