Temporary Final Rule Extends Certain Employment Authorization Cards by Up to 540 Days

As USCIS case processing delays have continued to grow, USCIS has now announced that the automatic extension period will be increased from 180 days to 540 days. The temporary final rule (TFR) making this announcement was effective upon publication in the Federal Register on May 4, 2022.

To be eligible for the 540-day automatic extension:

1. The individual must have been issued an EAD card in one of the categories listed by USCIS. Note that DACA- and F-1 OPT-based EAD cards are not included in the automatic extension.
2. The individual must have filed an application to renew employment authorization on Form I-765 prior to the EAD card’s expiration date.
3. The Form 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 TPS based; in this case, categories A12 or C19 are used interchangeably.)
4. The Form I-765 must remain pending and not have been denied. (Once the Form I-765 is denied, the extension period automatically ends.)
5. Employment Based Dependent Spouses: H-4, E, and L-2 dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status (including E-1S, E-2S, E-3S, and L-2S class of admission codes) must accompany Form I-797C when presenting proof of employment authorization to an employer for Form I-9, Employment Eligibility Verification, purposes).

This rule applies to:

1. Individuals whose Forms I-765 are pending as of May 4, 2022 (including those whose 180-day extension period expired prior to May 4, 2022); and
2. Individuals who file Forms I-765 from May 4, 2022, through October 26, 2023.

NOTE: On October 27, 2023, USCIS will revert to the 180-day automatic extension period.

For Employers Completing the I-9 Process: USCIS has updated the Handbook for Employers (M-274) at Section 4.4 to provide guidance for updating Forms I-9 to include the extended 540-day employment authorization period. To complete a Form I-9 using automatically extended EAD cards under this rule, USCIS has provided the following protocol.

For new hires or rehires completing new I-9s:

• In Section 1 of the Form I-9, the new hire should list the extended expiration date of work authorization.
• In Section 2, the employer should list the EAD card under List A.
• The employer should then list the receipt number from the I-797C in the document number field.
• In the expiration date field, the employer should enter the date 540 days from the “card expires” date on the EAD. This should match the date the employee entered in Section 1.
• The employer should enter “EAD EXT” in the Additional Information field.
• Note: For H-4 (C26), E (A17), and L-2 (A18) dependent spouses, whose Form I-797C must be accompanied by an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status, the expiration date in Section 2 or 3 may not exceed the Form I-94 end date. Accordingly, employers should enter “EAD EXT” and the auto-extended date (EAD EXT mm/dd/yyyy) based on the “Card Expires” date on the EAD, or the end date of the Form I-94, whichever is earlier.
• For existing employees with valid employment authorization as of May 4, 2022, who are now eligible for the 540-day extension, USCIS guidance indicates that Section 2 may be amended to update the expiration date as follows:
  • Employers should enter “EAD EXT” and the auto-extended date (EAD EXT mm/dd/yyyy) based on the “Card Expires” date on the EAD

According to the TFR, if an employee had their employment terminated due to a lapse in employment authorization and is now being rehired, the employer has the choice of completing a Section 3 or completing a new Form I-9. Employers should consider applying their policy relating to Form I-9 completion for rehires. If the employer completes new Forms I-9s for all rehires, a new form should be completed. If the employer uses Section 3 for rehires, when possible, the employer should determine whether the rehire is taking place within 3 years of the original Form I-9 completion. If so, Section 3 can be completed as noted above, with the addition of the rehire date. If the rehire is more than three years after the original Form I-9 completion, a new Form I-9 is required. Additional considerations relating to electronic Form I-9 limitations may also inform whether or not a new I-9 must be completed. Specifically, electronic I-9 systems will need to build out workflows to match the additional time allotted after the 180 days which may be difficult to accurately record in Section 2, along with the suggested language for the Additional Information box. The Handbook for Employers also provides specific guidance on TPS beneficiaries and spouses of H-1B, L-1s and Es included in the TFR outlining the nuances, limitations, and additional documents required to complete their Forms I-9.

Credit/Source: American Immigration Lawyers Association (AILA)