Employment Authorization Document (EAD) Automatic Extension Guide

October 26, 2022 by Zuzanna Kłopotek

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EAD Automatic Extensions

Until May 2022, specific Employment Authorization Document (EAD) categories were eligible for an EAD automatic extension of up to only 180 days. However, on May 3, 2022, U.S. Citizenship and Immigration Services (USCIS) introduced a Temporary Final Rule (TFR), which stated that for some designated Employment Authorization Document categories, the automatic extension period would be increased providing up to 360 days of the additional automatic extension time, for a total of up to 540 days, to eligible renewal applicants. At the same time, the rule was said to be effective immediately and valid through 15 October 2025. 

Why was the Temporary Final Rule introduced? 

The Temporary Final Rule was introduced due to U.S. Citizenship and Immigration Services’ excessive caseload, leading to a backlog of Employment Authorization Document renewal applications. The change was intended to avoid situations in which non-immigrants, who would be eligible for the automatic extension, would lose their employment authorization. This would cause difficulties both on the employees’ and employers’ sides. Similarly, the automatic extensions to certain Employment Authorization Documents renewal applicants of their expiring EADs were introduced a few years ago to respond to the staff and financial shortages U.S. Citizenship and Immigration Services has been dealing with. Years later, COVID-19 and other circumstances created a situation, in which the rule had to be adjusted once again. 

What is an automatic extension of an Employment Authorization Document?

An automatic extension of the Employment Authorization Document is a rule first introduced in 2017 as a logistical solution to USCIS organizational difficulties. It allowed U.S. Citizenship and Immigration Services to grant certain EAD renewal applicants an automatic extension of the Employment Authorization Document expiry date, provided that generally three criteria were met: 

  1. ​​The EAD has a category code designated by USCIS to be eligible for the extension (A03, A05, A07, A08, A10, A17, A18, C08, C09, C10, C16, C20, C22, C24, C26, C31, and A12 or C19). The eligible categories are published on the USCIS Automatic Employment Authorization Document extension page.
  2. The Form I-765, Application for Employment Authorization was filed on time and it remained pending.
  3. The code from Form I-797C, Notice of Action issued for the corresponding Form I-765 renewal application, has the same category as the expiring Employment Authorization Document.

Due to the Temporary Final Rule introduced in May 2022, the list of criteria for EAD’s new automatic extension period has changed. 

Who qualifies for this extended Employment Authorization Document automatic work authorization?

The main criteria remain the same as those listed in the paragraph above. Of course, you should always make sure of the codes included in the U.S. Citizenship and Immigration Services list. Given that the Temporary Final Rule introduced in May 2022 is only a temporary solution, there are additional criteria that have to be met: 

  • Form I-765 renewal application was filed before May 4, 2022, and the 180-day automatic extension has since expired.
  • Form I-765 renewal application was filed ​​before May 4, 2022, and the 180-day automatic extension has not yet expired.
  • Form I-765 renewal application was filed between May 4, 2022, and October 26, 2023.

If all of these requirements are fulfilled, an individual can be qualifying for the automatic extension of up to 540 days. 

What does the Temporary Final Rule (TFR) mean for the employees?

The introduction of the Temporary Final Rule has resulted in the possibility of many scenarios regarding the capabilities of applicants. 

1. An employee’s Employment Authorization Document card has not expired yet and the Form I-765 is still pending. The employee receives an Employment Authorization Document automatic extension if this EAD expires before their application’s consideration.

2. An employee’s Employment Authorization Document has expired but the employee still has time remaining in the 180-day extension. 

The employee has now the possibility to get a further extension for a total of 540 days past their EDA expiry date. 

3. An employee’s 180-day automatic extension expired before May 4, 2022. 

In that case, employment authorization has been automatically resumed with the EAD validity period starting from May 4, 2022, and will last up to 540 days from the expiration of the EAD card. Applicants in this situation will now have an additional extension of work authorization for up to 360 days from that EAD expiry date. 

4. An employee files an Employment Authorization Document renewal application between the dates of May 4, 2022, and Oct. 26, 2023.  In that case, if their Employment Authorization Document expires before adjudication of Form I-765, the EDA will automatically be extended up to 540 days. 

How should employers complete the Form I-9 for those applicants qualifying for the Employment Authorization Document under the Temporary Final Rule? 

On May 9, 2022, U.S. Citizenship and Immigration Services posted guidance regarding the completion of Form I-9 in light of this Temporary Final Rule. In general, employers whose employees’ Employment Authorization Document has expired, firstly should determine whether the employee qualifies for an EAD automatic extension and establish how the expiration date of the employee’s Employment Authorization Document changes. Then employers should complete an update of the employee’s Form I-9. The update has to be filed no later than the date the employee’s 180-day extension ends. 

The employer should enter the receipt number from Form I-797C, Notice of Action, in the Document Number field and the “Employment Authorization Document” in the document title field. In the form’s expiry date field, the employer should: 

  • If the “Received Date” in Form I-797C is before or on October 26, 2023, the employer should indicate the date 540 days from the expiry date of the Employment Authorization Document.
  • If the “Received Date” in Form I-797C is after October 26, 2023, the employers should indicate the date 180 days from the expiry date of the Employment Authorization Document.

Conclusion

Certainly, the changes introduced by the Temporary Final Rule may raise many questions regarding not only the qualifications, and the final expiration date of the work authorization, but also the paperwork for filling out the relevant forms regarding the Employment Authorization Document. However, we hope that our guide has helped sort out these complexities and answer your questions. 

FAQ

  • Can I continue to work while the Employment Authorization Document renewal is pending?

    Before introducing the Employment Authorization Document automatic extension, the pending Employment Authorization Document did not provide permission to work, so the applicant could not continue to work during that period. However, when Employment Authorization Document automatic extension was introduced, it granted the possibility for work authorization to be valid while a timely-filed renewal application is pending.
  • How can I prove my work authorization while my application is pending?

    This will depend on the date when you filed your Form I-765 renewal application. If you filed your Form I-765 renewal application for your Employment Authorization Document before May 4, 2022, you should have received a Form I-797C Notice of Action receipt notice, which included information about the automatic extension period of up to 180 days. To prove your employment authorization validity, you can present Form I-797C receipt notice that refers to the 180-day extension, along with your qualifying Employment Authorization Document. If you filed your Form I-765 renewal application for your Employment Authorization Document on May 4, 2022, or later, you will receive Form I-797C Notice of Action receipt notice, which will include information about the 540-day automatic extension. If you are a person qualifying for the Employment Authorization Document, this document with your expired Employment Authorization Document will serve as proof of your employment authorization or your EAD validity during the extension period.
  • What will happen to the renewal applications, which will be filed later than October 25, 2023?

    If you submit your EAD renewal application later than 26 October, the Temporary Final Rule (TFR) regarding the automatic extension to 540 days will not apply. Every application with a later “Received Date” than October 26, 2023, will be given 180 days of automatic extension rule.