U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) increasing the automatic extension period of employment authorization and Employment Authorization Documents (EAD) from 180 days to up to 540 days total. The TFR will be effective immediately on May 4, 2022. The temporary increase will avoid gaps in employment for non-citizens with pending EAD renewal applications. The TFR applies only to those who fall under the EAD categories currently eligible for an automatic 180-day extension, with a timely filed form I-765 renewal application pending during the 18-month period after publication of the TFR.

Who Is Eligible For Automatic Employment Authorization Document Extension?

The Automatic Employment Authorization Document Extension applies to those who:

  • Properly filed Form I-765 for a renewal of their employment authorization and/or EAD before their current EAD expired, and
  • Are otherwise eligible for a renewal (fall under one of the categories below) and the category on your EAD matches the “Class requested” listed on your Form I-797C Notice of Action.

Automatic Employment Authorization Document Extension Categories:

  • (a)(3) – Refugee
  • (a)(5) – Asylee
  • (a)(7) – N-8 or N-9
  • (a)(8) – Citizen of Micronesia, Marshall Islands, or Palau
  • (a)(10) – Withholding of Deportation or Removal Granted
  • (a)(12) – Temporary Protected Status (TPS) Granted
  • (a)(17) – Spouse of principal E nonimmigrant with an unexpired I-94 showing E nonimmigrant status
  • (a)(18) – Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 nonimmigrant status
  • (c)(8) – Asylum Application Pending
  • (c)(9) – Pending Adjustment of Status under Section 245 of the Act
  • (c)(10) – Suspension of Deportation Applicants (filed before April 1, 1997) Cancellation of Removal Applicants Special Rule Cancellation of Removal Applicants Under NACARA
  •  (c)(16) – Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)
  • (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”. 
  • (c)(20)  – Section 210 Legalization (pending I-700)
  • (c)(22) – Section 245A Legalization (pending I-687)
  • (c)(24) – LIFE Legalization
  • (c)(26) – Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status
  • (c)(31) – VAWA Self-Petitioners

Extension Duration

  • Non-citizens with a pending EAD renewal application whose 180 day automatic extension has lapsed and whose EAD has expired will be granted an additional period of employment authorization and EAD validity beginning May 4, 2022 and lasting up to 540 days from the expiration of their EAD, such that they may resume reemployment if they are still within the up to 540-day automatic extension period and are otherwise eligible.
  • Non-citizens with a pending renewal application and still covered under the 180-day automatic extension (EAD is expired) will be granted an additional up to 360-day extension, for a total of up to 540 days past the expiration of the current EAD.
  • Non-citizens with a pending renewal application and valid EAD on May 4, 2022, or who timely file an EAD renewal application before Oct. 27, 2023, will be granted an automatic extension of up to 540 days if their EAD expires before the renewal application is processed.

The TFR is a response to USCIS’ unprecedented backlog of 1.5 million work-permit applications. USCIS hopes this extension will assist non-citizens maintain employment and provide critical support to them and their families while giving USCIS an opportunity to work through their caseloads. USCIS hopes the TFR will assist them in ultimately achieving the goal of a three-month cycle time for EAD applications by the end of FY2023.

Please contact Meyer Law Group if you have any questions or concerns regarding this client alert. We will continue to keep our clients updated of any changes to this impending rule.