On May 4, 2022 a Temporary Final Rule (TFR) published by the US Citizenship and Immigration Service (USCIS) of the Department of Homeland Security (DHS) increased the automatic extension period for certain categories of work authorization to up to 540 days. This is a welcome relief for certain categories of foreign nationals who are at risk of losing work authorization due to USCIS’s processing delays.
Below is a summary of this important rule:
Who: This rule applies to foreign nationals whose employment authorization documents (EADs) were eligible for the 180 day automatic extension. These foreign nationals are now temporarily eligible for up to 360 days of additional automatic extension time—or up to 540 days total—while the renewal application is pending. The list of eligible foreign nationals includes asylees, refugees, spouses of L and certain H-1B employees, and those with a pending application for adjustment of status to that of a permanent residence. Approximately 87,000 individuals are expected to be affected by this rule. The rule does not apply to those seeking initial approval for work authorization.
What: An eligible EAD renewal applicant may demonstrate continued work authorization by presenting his/her Form I-797C Notice of Action receipt notice for I-9 verification in accordance with the regulations. The criteria for receiving this increased automatic extension are the same as the criteria applicable for an extension of up to 180 days. The 540 day, or nearly 18 month period, is counted from the expiration date on the face of the EAD.
When: This rule applies to applications for extension of work authorization that are pending or will be pending between now and October 26, 2023. Automatic extensions of employment authorization and EAD validity will revert to the 180-day period beginning October 27, 2023. The DHS does not expect to continue this increased extension period after the Fall of 2023.
Why: Processing times for EAD applications are up to 11 months, which means that renewal applicants are not receiving EADs in a timely manner and are being terminated from employment. DHS is taking these steps to help prevent renewal applicants from experiencing a lapse in employment authorization while their application remains pending and prevent employers from experiencing an unnecessary disruption in services while the USCIS addresses its backlog of extension applications.
What to do (foreign nationals): File timely renewal applications for EADs in order to be eligible for the automatic extension. Contact your employer if you were terminated or put on leave, if you believe this rule applies to you.
What to do (employers): Review employee records to determine if an employee has been recently terminated due to an expired EAD card. Take further steps as needed and desired for affected employees and former employees while consulting the I-9 handbook. Reach out to qualified immigration counsel if you have any questions. Finally, periodically review I-9s for compliance and implement an automatic I-9 expiration alert system so that employees have ample time to file an extension application and there is minimal disruption in employment authorization.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
[View source.]
