By: Valerie Salcido, Mahsa Aliaskari, and Jake Campbell

Seyfarth Synopsis: U.S. Citizenship and Immigration Services (USCIS) recently announced a Temporary Final Rule extending the automatic extension period for certain Employment Authorization Document (EAD) renewal applicants from 180 days to 540 days.

In alignment with ongoing efforts aimed at streamlining operations and enhancing processing efficiency, the U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) that extends automatic work authorization for certain Employment Authorization Document (EAD) renewal applicants from 180 days to 540 days. While not all EAD categories will benefit from this TFR, it promises significant relief to a substantial number of employees. The extension benefits certain EAD applicants whose EAD renewal applications were on or after October 27, 2023 and remain pending; and new renewal application filed until September 30, 2025.

Key Takeaways:

  1. Who benefits?
  • Applicants who timely and properly submitted their Form I-765 applications on or after October 27, 2023, and the application remains pending as of April 8, 2024.
  • Applicants who timely and properly file their Form I-765 applications between April 8, 2024 and September 30, 2025.
  1. Who is eligible for the 540-day auto-extension?
  • Timely and accurately filed Form I-765 for EAD renewal, i.e. filed and received by USCIS before the current EAD expires
    • Note exception for certain applicants with Temporary Protected Status (TPS) or a pending TPS application.
  • EAD category must be eligible for an automatic extension, and the renewal is in the same category
    • Note exception for A12 or C19 categories – these are interchangeable.
  1. Are there exceptions to the 540 day auto-extension?
  • Spouses – Auto extension is limited for H-4, E, and L-2 dependent spouses to the expiration date of their I-94. If the I-94 expires before the 540-window ends, then the auto-extension will also end on the I-94 expiration date.
  • Students – F-1 STEM OPT EAD extension applicants do not benefit from this TFR. The auto extension for this EAD category will remain at 180 days.

Categories Eligible for Automatic Extensions

The below is a non-exhaustive list of categories eligible for a 540-day automatic extension:

Eligible Categories
(c)(9)Pending Adjustment of Status under Section 245 of the Act
(c)(26)Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status.
(a)(17)Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status
(a)(18)Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status
(a)(3)Refugee
(a)(5)Asylee
(a)(12)Temporary Protected Status (TPS) Granted
(c)(8)Asylum Application Pending
(c)(19)Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”.

More information on the eligible categories can be found here.

Proof of an Automatic Extension

Employers should inform their I-9 compliance team and refer to this webpage when determining whether a Form I-797C, Notice of Action, if presented with the facially expired EAD, is acceptable to verify work authorization for Form I-9. Employers may attach a copy of the webpage with the employee’s Form I-9 to document the extension of employment authorization and/or EAD validity. For guidance on completing Form I-9 covering automatic extensions and proof of employment authorization for hiring, rehiring, and reverification, as well as all other Form I-9-related guidance, please visit I-9 Central.

Seyfarth Shaw will continue to monitor any further developments. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.