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.
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.
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); |
|
(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 |
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.
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.
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