U.S. Citizenship and Immigration Services (USCIS) will publish a Temporary Final Rule (TFR) to lengthen the automatic extension of certain Employment Authorization Documents (EADs).

Key Points:

  • Currently, certain applicants who file Form I-765, Application for Employment Authorization, qualify for automatic extensions of their expiring employment authorization and/or EADs for up to 180 days, if they:
    • 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, i.e., their renewal application is under a category that is eligible for an automatic 180-day extension, and the category on their current EAD matches the “Class Requested” listed on Form I-797C, Notice of Action.
  • The TFR temporarily increases the automatic extension period from up to 180 days to up to 540 days from the expiration date stated on the EAD. The list of EAD renewal categories eligible for the automatic extension is available here.
  • For renewal applications filed after May 4, USCIS will begin issuing Form I-797C Notices of Action with an explanation of the up to 540-day automatic extension period. The agency will update its website with more guidance to reflect the TFR.
  • Foreign nationals who filed their renewal application before May 4 will not receive a new notice but are still able to qualify for the longer extension. They will not need an updated Form I-797C to qualify for the longer extension. Form I-797C notices that refer to a 180-day automatic extension still meet the regulatory requirements and employees may present that document, along with the qualifying EAD, to receive the up to 540-day extension. H-4, L-2 and E dependent spouses must also present an unexpired Form I-94. Additional information about how to complete the Form I-9 to note the automatic extension is available here.
  • The TFR will be in effect from May 4, 2022, through Oct. 15, 2025; however, foreign nationals must file a qualifying renewal application by Oct. 26, 2023, to obtain an extension of up to 540 days. After that date, USCIS will revert to granting extensions of up to 180 days. USCIS will accept comments on the TFR until July 5, 2022.

Background: The TFR cleared White House review last week. It will be published in the Federal Register tomorrow, May 4. The prepublication version is available here.

BAL Analysis: The TFR is part of a package of initiatives USCIS announced in March to address processing delays. USCIS said Monday the TFR would help give the agency time to address staffing shortages, implement additional efficiencies and meet Director Ur Jaddou’s recently announced goal of achieving a three-month cycle time for EAD applications by the end of FY 2023. BAL will continue monitoring the implementation of the TFR and other initiatives to improve immigration processing times and will update clients as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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