On April 8, 2024, the Department of Homeland Security issued a Temporary Final Rule increasing the automatic extension period for expiring Employment Authorization Documents (EADs) of renewal applicants who have filed Form I-765, Application for Employment Authorization, from up to 180 days, to up to 540 days from the expiration date stated on their EADs.
How long is the 540-day automatic extension in effect?
The Temporary Final Rule took effect on April 8, 2024, and will be removed from the regulations on September 20, 2027.
The 540 day automatic extension for renewal applicants eligible to receive an automatic extension applies 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 renewal EAD application on or after April 8, 2024, and on or before September 30, 2025.
Automatic extensions of employment authorization and/or EAD validity will revert to the up to 180-day period for those eligible applicants who timely file renewal EAD applications after September 30, 2025.
Who qualifies for the 540-day automatic extension?
- The individual must have been issued an EAD card in one of the categories listed by USCIS. See list of categories eligible for automatic extensions here.
- The individual must have filed an application to renew employment authorization on Form I-765 prior to the EAD card’s expiration date.
- 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).
- The EAD is based on a category that does not require the adjudication of an underlying application or petition before the adjudication of the renewal application.
- The Form I-765 must remain pending and not have been denied. Once the Form I-765 is denied, the extension period automatically ends.
How do I complete Form I-9 based on an automatic EAD extension?
As per the guidance from the published rule, an EAD that is expired on its face is considered unexpired when combined with a Form I-797C receipt notice indicating a timely filing of the application to renew the EAD (8 CFR 274a.13(d)(4)). Therefore, when the expiration date on the front of the EAD is reached, an employee who is continuing employment with the same employer may present to the employer the Form I-797C receipt notice for the EAD application to show that their EAD has been automatically extended as evidence of continued employment authorization, and the employer must update the previously completed I-9 to reflect the new extension dates while the renewal application is pending. For new employment, the automatic extension is noted on the I-9 form by the employer and the employee. In both cases, the reverification of employment authorization must take place when the automatic extension period terminates.
For additional guidance on completing Form I-9 for EADs automatically extended based on a pending Form I-765 Renewal Application, please see U.S. Citizenship & Immigration Service’s Handbook for Employers M-274 available here.
