Co-author by Matthew Parker*
Seyfarth Synopsis: On May 3, 2022, U.S. Citizenship and Immigration Services (USCIS) announced an increase to the automatic extension period for certain Employment Authorization Documents (EADs) from 180 days to 540 days. This Temporary Final Rule (TFR) was published on May 4, 2022, will go into effect immediately, and is valid through October 15, 2025. USCIS is soliciting comments on the TFR that must be submitted on or before July 5, 2022.
The new TFR, effective immediately on May 4, 2022, and valid through October 15, 2025, will expand the automatic extension period of expiring EADs for certain renewal applicants from the previous length of 180 days to up to 540 days. This rule is in response to the massive backlogs of EAD renewal applications currently pending with the Service, and as described in the USCIS press release, "[t]his temporary rule will provide those noncitizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families while avoiding further disruption for U.S. employers."
Both employers and employees throughout the country will benefit from the TFR, which reflects the Administration's willingness to implement a solution to the growing processing time and backlog disaster. The TFR recognizes the incredible challenges companies are facing across the U.S., acknowledging that, "[EAD] renewal applicants are losing their jobs and employers suddenly are faced with finding replacement workers during a time when the U.S. economy is experiencing more job openings than available workers." Further, the Rule outlines the burden employers and employees alike are facing, and describes the problem as, "[a] result of several converging factors affecting USCIS operations that have been compounded by the COVID-19 public health emergency."
EADs that are already eligible for the 180 day extension will receive an additional 360 day extension for a total of 540 days. Examples of these categories include adjustment of status applicants, refugees and asylees applicants and beneficiaries, Temporary Protected Status (TPS) applicants and beneficiaries and spouses of E, L-1 and H-1B applicants (with an unexpired I-94 showing related nonimmigrant status). Unfortunately, DACA and OPT-based EAD cards do NOT benefit from the auto extensions.
What is an Automatic Extension?
Originally conceived during the Obama Administration, the Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers went into effect on January 17, 2017, allowing the USCIS to issue to certain EAD renewal applicants automatic extensions of the expiration date on their expiring EAD, subject to three (3) criteria. These three (3) criteria are as follows:
- The individual's expiring EAD has a category code eligible for an automatic extension as provided by USCIS. The eligible category codes are A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19.
- The individual timely filed the Form I-765, Application for Employment Authorization, for renewal of their EAD before their current EAD expired.
- The I-797C, Notice of Action for the filed Form I-765 contains the same category code as their expiring EAD.**
* For category codes, A17, A18, and C26, additional documentation is required to receive the extension of up to 540 days. Individuals with EADs containing these category codes must also present an unexpired Form I-94, Arrival-Departure record indicating the unexpired nonimmigrant status of E-1, E-2, E-2C, L-2, or H-4. These employees will be able to receive an extension on their work authorization for either 540 days from the expiration date on their EAD, or until their Form I-94 expires, whichever is earlier.
**Keep in mind that sometimes the DHS issues a blanket automatic extension of the expiring EADs for TPS beneficiaries of a specific country in order to allow time for EADs with new validity dates to be issued. For certain TPS beneficiaries (those with EADs containing the category codes A12 or C19), while the I-797C, Notice of Action, is not required to receive the blanket TPS extension, the I-797C will be required in order to benefit from the 540 day automatic extension. TPS is made even more complicated by ongoing litigation affecting certain TPS countries. Hopefully the USCIS will address those affected by the Ramos litigation for countries that have or have not been redesignated.
Another thing to remember is that for TPS beneficiaries presenting an EAD and I-797C Notice, the Notice must contain either the A12 or C19 category, but the category codes do not need to match each other.
Additionally, readers are reminded that the Country of Birth listed on a TPS beneficiary's A12 or C19 EAD has no bearing on whether the employee is eligible for a TPS and a related automatic extension. Specifically, the country of birth may not reflect a TPS designated country. Hey, @USCIS can you memorialize this somewhere?
Before today, if an employee met the three (3) criteria above, they qualified for a 180 day automatic extension of the expiration date on their expiring EAD. Starting May 4, 2022, those same employees now qualify for a 540 day automatic extension of the expiration date on their expiring EAD. In addition, the 540 day automatic extension also applies to those employees who may have already been experiencing an employment authorization gap due to their 180 day automatic extension lapsing. Accordingly, employers who suspended workers, or terminated with an expectation of rehire, should be prepared to reintegrate these auto-extended employees as soon as possible. This may be challenging for employers with a large number of affected employees.
What's Needed for the Form I-9?
Employees whose EAD renewal application is pending at the implementation of the TFR will be granted an additional 360 day extension in addition to the 180 extension (total 540 day). We understand that USCIS is preparing detailed FAQs, including how to update the Form I-9. What we know now is that employees eligible for a 540 day automatic extension of their EAD need only present the same documentation as they would or did for a 180 day automatic extension; 1) their expiring (or expired) EAD, and 2) the I-797C, Notice of Action (which meets the criteria above). We also know that the USCIS will begin issuing updated I-797C Notices of Action outlining the new 540 day automatic extension period, but for those individuals who already have an I-797C (or who receive one before the new I-797C Notices are issued), there is no cause for concern. Specifically, those employees can still present the current I-797C (noting the 180 days extension) along with the qualifying EAD to complete the Form I-9 and receive the 540 day extension.
While the USCIS updated the Automatic Employment Authorization Document (EAD) Extension information page, we expect that Section 4.4 of the M-274 Employer Handbook will be updated shortly to describe how employers should record the new extension of the Form I-9. In the interim, for existing employees it would be reasonable to update Section 2 with the new expiration date, and enter "540 Day EAD EXT" in the Additional Information field. Some electronic I-9 systems may find this directive challenging and may only leave you with the option to create a new I-9. In this case, it will be helpful to ensure the two I-9s are linked and appropriately annotated. In situations where employees were terminated or suspended based on the expired EAD, the employer may complete Section 3, if appropriate, or a new Form I-9. In fact the TFR discusses employees who "experienced a lapse in employment authorization and/or EAD validity prior to the effective date of this rule" noting, "their employers must complete Form I-9 by treating the individual's employment authorization as having previously expired pursuant to 8 CFR 274a.2(c)(1)(ii) but have a choice of either reverifying employment authorization on the employee's Form I-9 or completing a new Form I-9."
For new employees, the instructions will likely mirror the existing M-274 guidance, which we have copied here:
In Section 2, the employer must:
- Enter EAD in the Document Title field.
- Enter the receipt number from Form I-797C in the Document Number field.
- In the Expiration Date field, enter the date 540 days from the "Card Expires" date on the EAD (or, for A17, A18 or C26, the expiration date of validity shown on Form I-94, whichever is earlier). This expiration date may be cut short if USCIS approves or denies the employee's Form I-765 renewal application before the 540 day period expires.
For any questions related to this new TFR, or for any other questions regarding I-9 compliance, worksite enforcement audits, E-Verify compliance, Department of Labor immigration related wage and hour investigations, general H-1B compliance, and DOJ-IER anti-discrimination matters, please contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at email@example.com.
*Matt Parker is a Business Compliance Specialist in the Immigration Compliance and Enforcement practice. He is not admitted to the practice of law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.