Automatic Extension Period for Certain Employment Authorization Document (EAD) Renewals Temporarily Increased to 540 Days
On April 8, 2024, the Department of Homeland Security (DHS) published a Temporary Final Rule that temporarily increases the automatic extension period of certain Employment Authorization Documents (EADs) from 180 days to up to 540 days. This temporary increase in the automatic EAD extension period is being issued to minimize or avoid gaps in employment authorization while waiting for the EAD renewal application to be adjudicated, and to allow the USCIS to address its current processing backlog. The Temporary Final Rule is effective from April 8, 2024 through September 30, 2025.
The Temporary Final Rule applies to eligible applicants who timely and properly filed their EAD renewal applications on or after October 27, 2023 that remain pending as of April 8, 2024, and to EAD renewal applications filed between April 8, 2024 through September 30, 2025. For EAD renewal applications timely filed after September 30, 2025, the automatic extension period will revert back to the 180-day automatic extension, unless the DHS publishes a Final Rule to permanently adjust the automatic extension period.
The temporary increased automatic extension period is limited to those I-765 EAD renewal applicants eligible for the 180-day automatic extension, including spousal EAD renewal applicants in H-4, L-2 and E dependent statuses with an unexpired I-94 arrival-departure record, and I-485 adjustment of status-based EAD renewal applicants. Please note that the temporary increase of the automatic extension period of up to 540 days does not apply to F-1 students who have a pending STEM OPT extension application. The work authorization for these F-1 students are automatically extended for the maximum period of 180 days and will cease upon approval of the STEM OPT extension.
Proof of Increased Automatic EAD Extension for I-9 Purposes
The USCIS has updated the I-9 Central on its website to provide employees and employers with specific guidance on Form I-9 completion, including any required notations indicating the above-described extension of employment authorization and/or EAD validity. Please note the following on the evidence needed for Form I-9:
Eligible applicants who timely file the I-765 EAD renewal application on or after April 8, 2024 and through September 30, 2025 will receive a USCIS I-765 Receipt Notice with an explanation of the up to 540-day automatic extension period. The I-765 Receipt Notice and current or expired EAD (and unexpired Form I-94 for applicable H-4, E, or L-2 dependent spouses) is sufficient for I-9 purposes.
Eligible applicants who were issued I-765 Receipt Notices with a Received Date of October 27, 2023, through April 7, 2024 that refer to a 180-day extension will automatically receive the extension of up to 540 days from the expiration date of the EAD. Employers completing Form I-9 may attach a copy of the USCIS web page to document the extension of employment authorization and/or EAD validity, along with the issued I-765 Receipt Notice and current or expired EAD (and unexpired Form I-94 for applicable H-4, E, or L-2 dependent spouses).
Eligible applicants who timely filed the I-765 EAD renewal application between May 4, 2022 and October 26, 2023, and whose renewal applications remain pending, should have already been issued an I-765 Receipt Notice noting the 540-day automatic extension under the previously published Temporary Final Rule resulting from the processing backlog caused by the COVID-19 pandemic. The previously issued I-765 Receipt Notice and current or expired EAD (and unexpired Form I-94 for applicable H-4, E, or L-2 dependent spouses) is sufficient for I-9 purposes.
What this means for our clients
This automatic extension is welcome news for employers and employees as it will help minimize gaps in employment authorization caused by the lengthy USCIS processing delays. However, the rule does not cover first-time EAD applicants, or renewal applicants for many common EAD types. Furthermore, it does not provide a long-term solution to ongoing USCIS processing delays. The DHS previously allowed a temporary increase of the automatic EAD extension up to 540 days from May 4, 2022 to October 26, 2023 to address the lengthy processing delays caused by the COVID-19 pandemic, and yet to date, there continue to be significant increases to processing times for EAD renewals.