USCIS Temporarily Increases Automatic Extension Period for Certain EAD Applicants

On May 3, 2022, U.S. Citizenship and Immigration Services (USCIS) announced a temporary final rule (TFR) that increases the automatic extension period for expiring employment authorization documents (EAD) for renewal applicants in certain categories for up to 540 days. The TFR took immediate effect on May 4, 2022.

The TFR specifically applies to those EAD categories currently eligible for automatic 180-day extensions of work authorization on the basis of timely filed renewals. Those categories include the following:

• Refugees admitted to the United States fleeing persecution—Form I-765 category code (a)(3)
• Asylees granted asylum from persecution—(a)(5)
• Parents or the dependent children of people who received permanent residency as special immigrants under section 101(a)(27)(I) – (a)(7)
• Citizens of Micronesia, the Marshall Islands, or Palau—(a)(8)
• Applicants granted withholding of deportation or removal—(a)(10)
• Beneficiaries of temporary protected status (TPS), as nationals of countries to which they cannot safely return—(a)(12) and (c)(19)
• Spouses of principal E nonimmigrants with unexpired I-94s showing E nonimmigrant status—(a)(17)
• Spouses of principal L-1 nonimmigrants with unexpired I-94s showing L-2 nonimmigrant status—(a)(18)
• Applicants for asylum or withholding of deportation or removal—(c)(8)
• Applicants for adjustment of status to lawful permanent residency (“green card” applicants)—(c)(9)
• Applicants for suspension of deportation and cancellation of removal—(c)(10)
• Applicants for creation of a record of lawful admission for permanent residence—(c)(16)
• Applicants for legalization under section 210 of the Immigration and Nationality Act (INA)—(c)(20) and (c)(22)
• applicants for adjustment of status to lawful permanent residency under the Legal Immigration Family Equity (LIFE) Act, which allows certain undocumented individuals to adjust status if they had an immigrant petition or labor certification filed before April 30, 2001—(c)(24)
• Spouses of certain H-1B principal nonimmigrants with unexpired I-94s showing H-4 nonimmigrant status—(c)(26)
• Beneficiaries of the Violence Against Women Act (VAWA)—(c)(31)

The TFR will apply to noncitizens with pending and timely filed EAD renewal applications whose 180-day automatic extensions have lapsed and whose EADs have expired, as well as noncitizens currently covered by 180-day automatic extensions. Noncitizens with pending renewal applications and valid EADs on May 4, 2022, or who timely file EAD renewal applications by October 26, 2023, will be granted automatic extensions of up to 540 days if their EADs expire while the renewal applications are pending. An automatic extension generally will end upon notification of a final decision on the renewal application or the end of the maximum 540-day period (meaning, up to 540 days after the expiration date on the applicant’s facially expired EAD), whichever comes earlier.

USCIS continues to take steps, such as implementing the TFR, to address significant backlogs in processing times associated with a variety of factors, including the 2019 hiring freeze due in part to an inability to increase fees after 2016, the COVID-19 pandemic, and an increase in EAD initial filings and renewal filings in 2021. USCIS attributes the increase to (c)(9) filings resulting from changes in employment-based immigrant visa availability as well as the “cyclical nature” of the (c)(8) pending asylum and (c)(33) Deferred Action for Childhood Arrivals (DACA) categories.

The stated goal of the TFR is for USCIS to reach a median three-month EAD processing time by the end of fiscal year 2023. The TFR will end on October 26, 2023. Beginning on October 27, 2023, automatic extensions of work authorization will revert to periods of 180 days for eligible applicants.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.