USCIS Increases Employment Authorization Document Validity for Select Classifications
USCIS issued updated guidance increasing the validity period of Employment Authorization Documents (EADs) issued to certain categories of applicants.
USCIS will increase the initial validity period from a maximum of two (2) years to a maximum of up to five (5) years for the following applicants:
- Applicants for Adjustment of Status under INA Sec. 245
- Asylees and refugees
- Noncitizens granted withholding of deportation or removal
- Noncitizens with pending applications for asylum or withholding of removal
The maximum validity period of an EAD issued to a noncitizen paroled as a refugee or an individual seeking suspension of deportation or cancellation of removal will also be raised from one (1) year to five (5) years.
The increased validity period for these categories is intended to reduce the number of times individuals must apply for renewals, benefiting the applicant while reducing the administrative burden of processing applications on USCIS.
In addition, the guidance:
- lists the categories of noncitizens who are employment authorization incident to their status, i.e., individuals who do not require an EAD for employment and who may work pursuant to a properly issued I-94 document (e.g., L-2 spouses with a valid I-94 annotated with L-2S status);
- explains that Afghan parolees and certain Ukrainian parolees are authorized to work incident to their parole.
The new guidance is effective immediately and applies to Applications for Employment Authorization (I-765) that are pending or filed on or after September 27, 2023.
Rule Extending EAD Validity for 540 Days Upon Renewal Expires October 26, 2023
As part of an effort to reduce EAD application backlogs and prevent gaps in employment authorization (and loss of employment) for applicants filing to renew their EADs, in May 2022 USCIS implemented a temporary rule that automatically extended the validity of certain EADs for up to 540 days if the applicant timely submitted a renewal application by filing Form I-765.
This automatic 540-day extension is set to expire on October 26, 2023. As such, certain covered EAD renewal applications filed on or after October 27, 2023 will only be eligible for an automatic EAD extension period of up to 180 days.
The following categories will revert to the normal 180-day automatic EAD extension period upon the timely filing of a renewal application:
*Spouses of E and L visa holders are authorized to work incident to their status with a properly endorsed I-94 (e.g., endorsed with L-2S or E-3S status), and are not required to obtain an EAD for employment. However, these individuals may apply to renew previously issued and valid EADs if they wish.
Applicants who submit an EAD renewal application on or before October 26, 2023 will continue to be eligible to the automatic 540-day extension provided the I-765 renewal application is filed under the same classification and provided that USCIS receives the EAD renewal application before the expiration date on the underlying EAD.
At this time, it is uncertain whether USCIS will extend the automatic 540-day extension rule as there has been some improvement in EAD application processing times and some reduction in backlogs. Gibney will continue monitor USCIS policy around this issue and will provide updates as they become available.
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