Permanent Increase of the Automatic Extension Period for Certain EAD Holders to take Effect Monday, January 13, 2025

On December 10, 2024, the Department of Homeland Security (DHS) published a final rule permanently increasing the ‘automatic extension period’ for certain timely-filed employment authorization document (EAD) renewals from 180 to 540 days.  This rule will take effect on Monday, January 13, 2025.

Background

To accommodate for delays in processing, the USCIS has allowed automatic extensions of work authorization for certain foreign workers who have been granted EADs in the past, and who have timely filed a renewal of work authorization in the same category.  In May 2022, due to extreme backlogs in EAD processing which were caused in large part by the COVID-19 pandemic, the USCIS temporarily increased the automatic extension period for certain EAD renewals from 180 days to 540 days. This temporary measure was seen as essential to ensuring that thousands of temporary workers did not abruptly lose their work authorization. This temporary rule was extended for an additional time period in April 2024. On December 10, 2024, the DHS published a final rule to make the 540-day automatic extension period permanent.  

 Eligibility

 To be eligible for the increase in extension period, the following criteria must be met:

•  The extension must be timely filed (i.e., properly submitted to the USCIS prior to the expiration of the previously granted period of work authorization);

• The extension must have been filed on or after May 4, 2022.

The extension must be filed pursuant to one of the specific categories enumerated by the DHS. As of this writing, these categories include: 

• The extension must be requesting the same class of work authorization as the one that was previously approved. In other words, an applicant would not be eligible for the automatic extension if the previously approved EAD was granted for a different work authorization category, even if both categories are on the list of eligible categories

What this Means for Our Clients

The new rule increasing the period for automatic work authorization extension for pending EADs is welcome news for many foreign national workers, and their employers. It should be kept in mind, however, that not all categories are eligible under the new rule. Importantly, EADs filed for optional practical training (OPT) STEM extensions are not included. They are still limited to the 180-day automatic extension period. For certain categories that are eligible, including H-4, L-2, and E dependents, the 540-day automatic extension period may be cut short, if the I-94 expiration occurs sooner. It should also be kept in mind that the automatic extension of work authorization only applies while the renewal application is being processed. If it is denied, the automatic extension period will cease as of the date of the denial.

It is possible that the incoming Trump Administration may seek to rescind this and other immigration-related rulemaking that was promulgated by Biden in the waning days of its administration. Trump, with the assistance of the Republican-controlled Congress, may seek to cancel the EAD automatic extension rule under the Congressional Review Act. As of this writing, the Trump Administration has not indicated that it has any intention of taking such action.