DHS Permanently Increases Automatic Work Authorization Extension For Certain EAD Renewal Applicants To 540 Days

The issue

Certain foreign nationals with timely applications to extend an employment authorization document (EAD) will benefit from a permanent automatic extension of EAD validity of up to 540 days, under a forthcoming regulation that will be published on December 13, 2024. The regulation will take effect on January 13, 2025 and will apply to eligible applicants with timely filed renewal EAD applications pending or filed on or after May 4, 2022.

A closer look

In 2016, USCIS issued a regulation providing for the automatic extension of work authorization of up to 180 days from EAD expiration for certain EAD renewal applicants who timely file for EAD renewal in the same work authorization category and whose work authorization does not require adjudication of an underlying petition or application to establish the applicant's eligibility for EAD renewal.

After EAD processing times increased significantly, USCIS determined in May 2022 that this auto-extension period needed to be temporarily increased to up to 540 days, to reduce the risk of EAD renewal applicants experiencing a gap in work authorization. At the time, the 540-day auto-extension was available to those with EAD renewal applications pending as of May 22, 2022 and those who filed an EAD renewal application between May 4, 2022 and October 26, 2023. Earlier this year, DHS again offered a temporary 540-day extension to eligible foreign nationals with Form I-765 renewal applications that were timely filed on or after October 27, 2023 and were still pending as of April 8, 2024, as well as to eligible applicants who file EAD renewal applications between April 8, 2024 and September 30, 2025.

In light of persistent EAD processing backlogs and delays, DHS is now acting to transition the 540-day extension from a temporary to a permanent benefit to eligible applicants.

Who qualifies for the 540-day auto-extension

To qualify for the auto-extension, the applicant must:

• Timely file a Form I-765 EAD renewal application prior to the expiration of their current EAD or during a designated Temporary Protected Status (TPS) re-registration period;
• Apply for renewal in the same work authorization category on which their current EAD is based or be renewing an EAD based on TPS; and
• Apply under a qualifying work authorization category.

The list of EAD categories that qualify for the auto-extension includes the following categories and corresponding eligibility codes; the forthcoming regulation does not expand the categories of EAD eligible for auto-extension:

• Adjustment of status applicants (C09);
• E-1, E-2, and E-3 spouses with an unexpired E-1, E-2, or E-3 I-94 (A17);
• L-2 spouses with an unexpired L-2 I-94 (A18);
• H-4 spouses with an unexpired H-4 I-94 (C26);
• Temporary Protected Status (TPS) (A12 or C19);
• Refugees and asylees (A3 and A5);
• Noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08); and
• Approved self-petitioners under the Violence Against Women Act (VAWA) and their qualified children (A31).

The auto-extension period begins the day after the expiration date on the foreign national's EAD card. The extension automatically terminates if the EAD renewal application is denied before the end of the auto-extension period.

What this means for employers

Employers should ensure that their staff members involved in Form I-9 compliance are aware of the permanent implementation of the EAD auto-extension period and identify employees who may benefit from it.

As with any rule implemented in the final weeks of President Biden's term, the incoming Trump Administration could take steps to revise or roll back the regulation, but it is not yet clear that it will do so.

Fragomen will be monitoring the implementation of the new auto-extension period, and further client alerts may be issued as further developments occur.