LawFlash

USCIS Further Extends Automatic Work Authorization Period for Certain Renewal Applicants

May 13, 2022

US Citizenship and Immigration Services (USCIS) on May 3 announced a temporary increase—up to 540 days—to the automatic extension period for employment authorization and employment authorization documents (EADs) for certain EAD renewal applicants.

The increase, announced in a temporary final rule, took effect on May 4, 2022. It is intended to help avoid gaps in employment for foreign nationals with pending EAD renewal applications, which has been an issue in recent years due to the extremely lengthy processing times for the renewal applications.

This extension is only applicable to those foreign nationals who hold an EAD in certain classifications that have been designated for the automatic 180-day extension, and who have timely filed a Form I-765 renewal application during the 18-month period after the effective date of the temporary final rule.

  • Foreign nationals with a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired will be granted an additional period of employment authorization and EAD validity, beginning on May 4, 2022, and lasting up to 540 days from the expiration date of their EAD. They may resume employment if they are still within the automatic extension period of up to 540 days and are otherwise eligible.
  • Foreign nationals with a pending EAD renewal application still covered under the 180-day automatic extension will be granted an additional extension of up to 360 days, for a total of up to 540 days past the expiration of the current EAD.
  • Foreign nationals with a pending renewal application and valid EAD on May 4, 2022, or who timely file an EAD renewal application before October 27, 2023, will be granted an automatic extension of up to 540 days if their EAD expires before the renewal application is processed.

The automatic extension will end upon notification of a final decision on the renewal application or the end of the up-to-540-day period (meaning, up to 540 days after the expiration date on the applicant’s expired EAD), whichever comes earlier.

Categories Eligible for Automatic Extensions

The following employment eligible categories are eligible for an automatic extension:

Eligibility Category Listed on Form I-765 Renewal Application

Description

(a)(3)

Refugee

(a)(5)

Asylee

(a)(7)

N-8 or N-9

(a)(8)

Citizen of Micronesia, Marshall Islands, or Palau

(a)(10)

Withholding of Deportation or Removal Granted

(a)(12)

Temporary Protected Status (TPS) Granted

(a)(17)

Spouse of Principal E Nonimmigrant with an Unexpired I-94 Showing E (Including E-1S, E-2S and E-3S) Nonimmigrant Status*

(a)(18)

Spouse of Principal L-1 Nonimmigrant with an Unexpired I-94 Showing L-2 (Including L-2S) Nonimmigrant Status*

(c)(8)

Asylum Application Pending

(c)(9)

Pending Adjustment of Status Under Section 245 of the Act

(c)(10)

Suspension of Deportation Applicants (filed Before April 1, 1997);
Cancellation of Removal Applicants;
Special Rule Cancellation of Removal Applicants Under NACARA

(c)(16)

Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)

(c)(19)

Pending Initial Application for TPS Where USCIS Determines Applicant IsPrima FacieEligible for TPS and Can Receive an EAD as a “Temporary Treatment Benefit”

(c)(20)

Section 210 Legalization (Pending I-700)

(c)(22)

Section 245A Legalization (Pending I-687)

(c)(24)

LIFE Legalization

(c)(26)

Spouses of Certain H-1B Principal Nonimmigrants with an Unexpired I-94 Showing H-4 Nonimmigrant Status

(c)(31)

VAWA Self-Petitioners

Students

Please note that F-1 STEM OPT EAD extension applicants will not be eligible for this temporary 540-day automatic extension period. They will continue to be eligible for the original automatic extension period of up to 180 days. 

Next Steps for Employers

As this is a temporary measure, employers are still encouraged to continue to track expiration dates for eligible EAD categories so that any EAD renewal applications can be prepared in advance and filed in a timely manner.

Employers that have had to recently suspend or terminate employees due to an EAD expiration may want to revisit their records to determine if the employees can resume employment as of May 4, 2022.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Miami
Laura C. Garvin

San Francisco
A. James Vázquez-Azpiri
Christina M. Gonzaga

For additional government-related guidance, learn more about our Washington strategic government relations and counseling practice.