USCIS Increases Automatic Extension Period of Work Permits for Certain Applicants

Effective tomorrow, May 4, 2022, USCIS has extended the automatic employment authorization for certain EAD extension applicants from 180-days to 540-days, an increase of 360 more days of work authorization based on a timely filed extension. The complete list of applicable categories for this extension may be found here.

To be eligible for the 540-day extension starting effective tomorrow (noting the applicable categories above), you must: 1) have properly filed Form I-765 for a renewal of employment authorization before your current EAD expires (timely); 2) be eligible for a renewal, per the list of categories linked above; and 3) have a timely-filed Form I-765 renewal application pending during the 18-month period after this rule’s publication.

The USCIS alert highlights three categories:

• If you have a timely-filed pending EAD renewal application, your EAD is now expired, and your 180-day period has lapsed, starting tomorrow you are work authorized for up to 540 days from the expiration of your EAD. This means you may begin working again tomorrow if you are still within a 540 day period from the expiration of your EAD.
• if you have a timely-filed pending EAD renewal application, your EAD is now expired, and you are still in your 180-day automatic extension, you are now granted an additional 360-days of extension (a total of 540 days past the expiration of your EAD).
• if you currently have a timely-filed pending EAD renewal application, and your EAD is still valid, and your renewal application is filed before October 27, 2023, you are granted an automatic extension of 540-days past the expiration of your EAD as the case processes.

Note: The automatic extension generally will end upon notification of a final decision on the renewal application or the end of the up to 540-day period (meaning, up to 540 days after the expiration date on the applicant’s facially expired EAD), whichever comes earlier.

This is an effort by USCIS to reduce gaps in work authorization as they work through the extreme delays and backlogs facing the agency. USCIS has publicly noted a goal of 3- month EAD processing times by the end of FY2023. This is an unprecedented shift in USCIS policy, and something that signals USCIS is facing a very real backlog of cases and historic delays in processing as it allows almost a full additional year of work authorization to those eligible. We will continue to monitor as USCIS works to reduce its backlog.

At the same time that USCIS signaled it was trying to address processing delays, it also mentioned it was looking to expand Premium Processing services, and there was immediate speculation on the availability of Premium Processing for H-4 (I-539) filings, and their associated H-4 EADs (I-765)—with DHS’s move to provide more time to process auto-extendable EADs, we speculate whether, in addition to admitting historically bad processing times, is USCIS possibly creating some breathing room to roll out Premium Processing to those EADs that must be approved to permit work authorization.

For now, the additional 360-days of work authorization based on a timely filed pending I-765 will end on October 27, 2023 (reverting back to 180-days).

The temporary final rule confirming the extension period can be found here.

Note to Employers and HR Partners on I-9 Compliance: Please visit the USCIS website for information on I-9 compliance for individuals utilizing their automatic extension period. If you have any questions, please contact your Brown Immigration Law attorney for an assessment.

Best Regards,

The Team at Brown Immigration Law

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **