On April 04, 2024, USCIS announced a temporary final rule (TFR) to increase the automatic extension period for certain employment authorization documents (EADs) from up to 180 days to up to 540 days. EADs are generally valid for the length of the authorized parole period. This TFR does not extend the length of parole.

This temporary final rule will apply to two categories of EAD applicants: (1) applicants who timely and properly filed their Form I-765 applications on or after October 27, 2023, if the application is still pending on April 8, 2024; and (2) applicants who timely and properly file their Form I-765 application on or after April 8, 2024 and on or before September 30, 2025 (540 days after publication of this temporary final rule in the Federal Register).

Certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring employment authorization and/or EADs while their application is pending. You qualify for this extension if you:

·       Properly and timely filed Form I-765 for a renewal of your employment authorization and/or EAD before your current EAD expired (except certain applicants with Temporary Protected Status (TPS) or a pending TPS application), and

·       Are otherwise eligible for a renewal, which means that:

o   Your renewal application is under a category that is eligible for an automatic extension (see the list of categories below); and

o   The Category on your current EAD matches the “Class Requested” listed on your Form I-797C Notice of Action, Receipt Notice. (Note: If you are a Temporary Protected Status (TPS) beneficiary or pending initial applicant, your EAD and this Notice must contain either the A12 or C19 category, but the categories do not need to match each other. In addition, for 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 and identity to an employer for Form I-9, Employment Eligibility Verification, purposes).

Proof of an Automatic Extension

The automatic extension period is provided to certain renewal applicants to help prevent gaps in employment authorization and documentation.

To present acceptable proof of the automatic extension of employment authorization and/or EAD validity, you can show your Form I-797C receipt notice that refers to the 180-day extension, along with your qualifying EAD (and also your unexpired Form I-94, if you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes). This document combination is sufficient proof of an up to 540-day automatic extension under the May 2022 temporary final rule or April 2024 temporary final rule, counting from the expiration date on your current EAD.

If you filed a Form I-765 renewal application on or after May 4, 2022, and before October 27, 2023, and you are in one of the eligible categories below, you should have received a Form I-797C, Notice of Action receipt notice that has information regarding the up to 540-day automatic extension.

If you file a Form I-765 renewal application on or after April 8, 2024, and you are in one of the eligible categories below, USCIS will issue a Form I-797C, Notice of Action receipt notice with an explanation of the up to 540-day automatic extension period.

If you filed a Form I-765 renewal application on or after October 27, 2023, and before April 8, 2024, and you are in one of the eligible categories below, even a Form I-797C notice that refers to a 180-day automatic extension still meets the regulatory requirements of the April 2024 temporary final rule. Therefore, you may present Form I-797C with your facially expired EAD to an employer to demonstrate that you are eligible for the up to 540-day automatic extension. Instead of issuing updated Form I-797C notices, USCIS will update the webpage that is referenced in the Form I-797C notice to reflect the change in the automatic extension period.

Employees and employers should refer to this webpage when determining whether a Form I-797C, Notice of Action, if presented with the facially expired EAD, is acceptable 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.

An individual's automatic extension period may terminate prior to the maximum period either automatically when USCIS issues a decision on the applicant's Form I-765 renewal application or upon notice.

Categories Eligible for Automatic Extensions

The following employment-eligible categories are eligible for an automatic extension:

Temporary Protected Status (TPS)

Individuals with a TPS-based EAD may receive an automatic extension of their EAD:

·       Through publication of a Federal Register notice extending the TPS designation of the individual's country, if the Federal Register notice also authorizes an automatic extension of covered individuals' existing EADs; or

·       Through this automatic extension.

F-1 International Students

F-1 students who have a pending STEM optional practical training (OPT) extension application are not eligible for the temporary increase of the automatic extension period under the 2022 or 2024 temporary final rules. The temporary increase of the automatic extension period under 8 CFR 274a.13(d) only applies to the categories listed in the chart above.

If you file your STEM OPT extension application on time and your OPT period expires while your extension application is pending, we will automatically extend your employment authorization for 180 days. This automatic 180-day extension ceases once USCIS adjudicates your STEM OPT extension application.

Disclaimer

We regularly update our blog section to acquaint the community with the latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.