On October 26, 2023, a temporary rule allowing certain eligible applicants for employment authorization documents (EADs) to automatically extend their EADs for 540 days will expire. EAD applicants who file Form I-765 Applications after October 26, 2023 will be eligible for an automatic extension of up to 180 days. We previously informed our clients about this temporary rule in an alert published on May 10, 2022.
U.S. immigration regulations permit many foreign nationals to request employment authorization pursuant to status. This includes, but is not limited to, certain applicants for adjustment of status; the spouse of some nonimmigrants, including eligible H-4 visa holders; applicants for asylum and refugee status; and those requesting cancellation of removal. Historically, requests for employment authorization were processed by United States Citizenship and Immigration Services (USCIS) in a 90-to-120-day period.
Over the past few years, USCIS has experienced processing delays, resulting in applicants’ inability to renew employment authorization to continue working in this country. This has led to the disruption of both the workplace and the foreign national’s ability to work, contribute to income, and support themselves and their family. In 2017, USCIS implemented a regulation facilitating an automatic, 180-day extension of EADs for certain categories of EAD holders, which took effect with the provision that the individual filed a timely request for EAD extension. The 180-days was insufficient for USCIS to review and issue the document, and for this reason, it has automatically extended employment authorization to a 540-day limit, with a target end date of October 26, 2023.
The rule applies to those who submitted renewals of EADs prior to the expiration of their current EADs and remain pending as of May 4, 2022, or who filed between May 4, 2022 and October 26, 2023, and whose EAD has not expired or whose current 180-day auto-extension has not lapsed.
What Changes After October 26, 2023? What Should Employers Do?
• After October 26, 2023, EAD renewal applicants who timely file their I-765 applications will be eligible for an automatic 180-day extension of their EADs.
• EAD applicants are eligible to file their I-765 applications at least 6 months prior to the expiration of their EADs.
• Employers should review their employees’ EADs to determine if they are eligible to apply for EAD extensions before October 26, 2023. If so, eligible employees should file their EAD renewal applications before October 26, 2023 to be eligible for the current 540-day EAD-renewal extension.