USCIS Temporarily Increases Automatic Extension Period for Certain I-765 EAD Renewals
On May 3, 2022, the U.S. Citizenship and Immigration Services (USCIS) announced a temporary final rule that increases the 180-day automatic extension period for I-765 employment authorization (EAD) renewal applications up to 540 days. Under the normal regulatory procedure, certain applicants who timely filed I-765 EAD renewal applications would receive an automatic 180-day extension of their EADs. However, due to the severe USCIS backlog in processing these applications, the USCIS is temporarily increasing the automatic extension period for an additional 360 days to help prevent gaps in employment authorization. The 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.
The temporary final rule went into effect on May 4, 2022. The increased automatic extension period will apply to pending I-765 EAD renewal applications filed before the effective date where the 180-day period has expired or has yet to expire, and to renewal applications timely filed between May 4, 2022, and through October 26, 2023. Applicants whose 180-day automatic extension period has already expired will resume work authorization beginning on May 4, 2022, for any remaining time available during the automatic extension period, counting from the expiration date of the EAD card up to 540 days.
The normal 180-day automatic extension will resume and apply to I-765 EAD renewal applications filed after October 26, 2023.
Proof of Automatic Extension for I-9 Purposes
For I-765 EAD renewal applications timely filed between May 4, 2022, through October 26, 2023, the USCIS will issue a receipt notice that provides the 540-day automatic extension from the expiration date of the EAD card. The receipt notice with the (expired) EAD card is sufficient proof of work authorization during the automatic extension period.
For pending I-765 EAD renewal applications timely filed before May 4, 2022, the USCIS will not be issuing new receipt notices. The previously issued receipt notice providing the 180-day automatic extension with the (expired) EAD card is sufficient proof of work authorization of up to 540 days from the expiration date of the EAD card for I-9 purposes. It is recommended to attach a copy of the USCIS announcement of the temporary final rule to the employee’s I-9 form.
What this Means for our Clients
The new rule will help many foreign nationals who are at risk of losing their work authorization due to government processing delays. However, the rule does not cover first-time EAD applicants, or renewal applicants for many common EAD types (the types of EADs that are covered in the rule are listed in the USCIS’ announcement). Moreover, because the rule is only temporary, and only applies to applications that were pending before the effective date, or through October 26 2023, it does not provide a long-term solution to ongoing USCIS processing delays.
H-4 Spouse EADs
For H-4 spouse EADs, the temporary final rule extending work authorization will only provide a benefit where the applicant’s I-94 arrival-departure record remains unexpired. Because the EAD and H-4 extension of stay and are most often filed together, and approved around the same time, the I-94 usually expires at the same time as the EAD, so the rule by itself provides little benefit. (1)
L-2 and E Spouse EADs
The temporary rule provides little benefit to spouses in L-2 and E dependent status, as such persons are now authorized to work without an EAD, ‘incident to status’.
Please contact our office should you have questions on how the new temporary rule applies to a specific situation.
(1) It may be possible in some cases for an H-4 spouse to extend their I-94 arrival-departure record while the EAD is still pending by traveling abroad and reentering using the principal’s H-1B approval notice. However, this workaround will usually require applying for a new visa stamp at a US consulate while abroad.