The U.S. Citizenship and Immigration Services (USCIS) issued a new temporary final rule, effective April 8, 2024, that extends certain employment authorization documents (EADs) by up to 540 days. Our Labor & Employment and Immigration teams discuss what employers and employees should know.

• Employers should review employees’ EADs to determine which employees are impacted by this rule change and update Forms I-9
• USCIS has clarified that employees who timely filed to renew their EADs between October 27, 2023 and April 8, 2024 are eligible for the 540-day automatic extension
• Employers should review Forms I-9 as necessary and check the USCIS website for additional guidance

The U.S. Citizenship and Immigration Services (USCIS) issued a new temporary final rule, effective April 8, 2024, that extends certain employment authorization documents (EADs) by up to 540 days. Employers should review employees’ EADs to determine which employees are impacted by this rule change and update Form I-9s as necessary.

New Temporary Final Rule and Form I-9s

Due to significant processing backlogs at USCIS for Form I-765 (Application for Employment Authorization), which have caused gaps in employment authorization for otherwise qualified foreign nationals, USCIS reverted to its prior policy of granting an automatic work authorization extension of 540 days to applicants who have timely filed applications to renew their EADs for certain EAD codes. The effective date of the new rule is April 8, 2024.

USCIS previously granted this 540-day extension from May 4, 2022 onward but then changed its policy to 180-day extensions on October 27, 2023. This new temporary final rule reverts to the 540-day extension, and USCIS has clarified that employees who timely filed to renew their EADs between October 27, 2023 and April 8, 2024 are eligible for the 540-day automatic extension.

The USCIS website provides guidance to impacted employees and instructs employers to refer to the website when determining whether a Form I-797C (Notice of Action) is acceptable for Form I-9 if presented with the facially expired EAD:

• For applicants who filed a Form I-765 renewal application between May 4, 2022 and October 27, 2023, the Form I-797C receipt notice that they previously received already has information regarding the 540-day automatic extension.
• For applicants who filed a Form I-765 renewal application between October 27, 2023 and April 8, 2024, a Form I-797C receipt notice that refers to a 180-day automatic extension still meets the regulatory requirements of the April 2024 temporary final rule and those applicants may present the Form I-797C with a facially expired EAD to an employer to demonstrate that eligibility for the 540-day automatic extension.
• For applicants who file a Form I-765 renewal application on or after April 8, 2024, USCIS will issue a Form I-797C receipt notice with an explanation of the 540-day automatic extension period.

Eligibility Requirements

The temporary final rule applies to individuals with EAD categories eligible for automatic extension who filed Form I-765 renewals on or after May 4, 2022 and met the following criteria:

• The individual must have an EAD in one of the eligible categories: A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19. (The automatic extension does not include DACA and F-1 Optional Practical Training–based EAD cards.)
• The individual must have filed an application to renew employment authorization on Form I-765 before the EAD card’s expiration date.
• The I-765 must remain pending and not have been denied.
• The I-765 must have been filed requesting an extension of employment authorization based on the same category as the expiring/expired EAD card (unless it is based on a temporary protected status; in that case, categories A12 or C19 are used interchangeably).
• The EAD’s category must match the category shown on Form I-797C for the renewal application. (The exceptions are: (1) EADs and Form I-797Cs that have category codes A12 or C19 do not have to match; and (2) an unexpired Form I-94 showing H-4, E, or L-2 status must be presented with the Form I-797C for H-4 (C26), E (A17) and L-2 (A18) dependent spouses.)

Impact and Recommendations for Employers

Employers should carefully review their employees’ EADs to determine eligibility for the automatic work-authorization extension of 540 days. In addition, employers should review Form I-9s as necessary and check the USCIS website for additional guidance.

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