USCIS’s New Rule Increases Automatic EAD Extensions from 180 to 540 Days

Quick Hits

• USCIS extended the automatic extension period for eligible EADs from up to 180 days to up to 540 days for applicants who timely and properly filed their Form I-765 applications.
• The eligible applicants are those who filed their Form I-765 1) on or after October 27, 2023 and if the application is still pending, on April 8, 2024; or 2) on or after April 8, 2024 and on or before September 30, 2025.
• This rule became effective on April 8, 2024 and ends on September 30, 2025.

USCIS’s prior temporary final rule increasing the automatic extension period for certain EAD applicants from 180 days to up to 540 days past the expiration date of the current EAD ended on October 26, 2023. However, due to the increasing volume of renewal EAD applicants, USCIS determined that the 180-day automatic extension does not give renewal applicants enough time to prevent them from experiencing a lapse in their employment authorization. Without the temporary final rule, USCIS estimates that, because of USCIS processing delays, approximately 800,000 renewal EAD applicants would be in danger of losing work authorization in the next two-year period beginning May 2024.

 Key Takeaways

USCIS is inviting the public to comment on whether the regulation should be permanently revised to lengthen the automatic extension period for eligible EAD applicants and whether a different extension period or solution should be implemented to mitigate the risk of expiring employment authorization for eligible EAD applicants due to USCIS processing delays and through no fault of their own.

• If an eligible applicant filed a Form I-765 renewal application on or after May 4, 2022, and before October 27, 2023, the applicant’s Form I-797C receipt notice already mentions the 540-day automatic extension. The Form I-797C receipt notice, underlying EAD, and unexpired Form I-94 (for applicable H-4, E, or L-2 dependent spouse) will suffice for I-9 purposes.
• If an eligible applicant filed a Form I-765 renewal application on or after October 27, 2023, and before April 8, 2024, USCIS will not issue a new Form I-797C that refers to the 540-day automatic extension period. The Form I-797C receipt notice that refers to a 180-day automatic extension, underlying EAD, and unexpired Form I-94 (for applicable H-4, E, or L-2 dependent spouse) will suffice for I-9 purposes. USCIS will also update the I-9 Central webpage to confirm these documents are acceptable proof of the automatic extension of employment authorization.
• If an eligible applicant files a Form I-765 renewal application on or after April 8, 2024, USCIS will issue a Form I-797C receipt notice that mentions the 540-day automatic extension. The Form I-797C receipt notice, underlying EAD, and unexpired Form I-94 (for applicable H-4, E, or L-2 dependent spouse) will suffice for I-9 purposes.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.

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