USCIS Automatic Extension Period for Work Permits Reverts to 180 Days

On 27 October 2023, U.S. Citizenship and Immigration Services' (USCIS) temporary final rule that increased the automatic extension period for employment authorization and Employment Authorization Documents (EADs) up to 540 days for certain renewal applicants reverts back to a maximum 180-day automatic extension for new applicants [USCIS, Handbook for Employers M-274, Section 5.1].

The extension only applies to certain renewal applicants who file Form I-765, Application for Employment Authorization. The temporary final rule is effective from 4 May 2022 through 15 October 2025.

Automatic Extensions
Noncitizens in certain employment eligibility categories who file Form I-765 to renew their employment authorization and/or EADs may receive an automatic extension while their renewal applications are pending. To qualify for the automatic extension, applicants must be renewing their EAD in the same work authorization category. They also must file Form I-765 before their current EAD card expires (or within the applicable filing period for Temporary Protected Status applicants), and the work authorization category must not be dependent on another benefit.

Applicants who file their applications on or before 26 October 2023, may receive an extension of up to 540 days. Applicants who file their applications after 26 October 2023, may receive an extension of up to 180 days. The extension begins on the "card expires" date on the front of the EAD and generally continues for up to 540 or 180 days (based on the application date), unless USCIS denies the renewal application earlier.

Eligible Applicants
The temporary final rule applies to three groups of applicants:

1. Renewal applicants eligible for the automatic extension who have a pending renewal Form I-765 application as of 4 May 2022, as long as their EAD has not expired or the 180-day automatic extension has not lapsed
   
   
2. Renewal applicants who file Form I-765 after 4 May 2022, but on or before 26 October 2023
   
   
3. Renewal applicants who already are experiencing a gap in employment authorization and/or EAD validity. Under the temporary rule, employment authorization and/or validity of these applicants' EADs will resume beginning on 4 May 2022, and continue for a period of up to 540 days from the date their employment authorization and/or EAD expired.

A renewal Form I-765 should be filed no earlier than 180 days prior to the expiration date of the EAD. After 26 October 2023, automatic extensions of employment authorization and EAD validity will return to the previous up to 180-day period for eligible applicants who file renewal Form I-765 applications.

Calculator for EAD Expiration Date
To assist employers and employees with determining the EAD expiration date for eligible employees, USCIS created an EAD Automatic Extension Calculator. The calculator does not replace an employer's responsibility to determine the eligibility of employees for the automatic extension.

Note: Employers and employees (new, current, and rehired) have to follow a few steps when completing Form I-9, Employment Eligibility Verification, for employees with EADs that have been automatically extended.

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Jyme Mariani, Esq., is Senior Manager of Payroll Information Resources for PayrollOrg.