USCIS extends work authorization up to 540 days

On May 3, 2022, United States Citizenship and Immigration Services (USCIS) announced a Temporary final rule which temporarily increases the automatic extension period of Employment Authorization and Employment Authorization Documents (EADs) from 180 days to 540 days. This policy will take effect on May 4, 2022 and will grant an automatic extension of up to 540 days to certain EAD renewal applicants with a timely filed Form I-765, Application for employment authorization renewal application pending during the 18-month period following the publication of the rule. The EADs authorize the employment of these foreign workers for a fixed period.

Eligible candidates include those who:

  • Have properly completed Form I-765 for renewal of their Employment Authorization and/or EAD prior to the expiration of their current EAD, and

  • Are otherwise eligible for renewal in that:

    • The renewal application was filed under a Category who is eligible for an automatic 180-day extension, such as the spouse of a primary E nonimmigrant, the spouse of an L-1 primary nonimmigrant, the spouses of certain H-1B primary nonimmigrants, and those pending status adjustment, etc. ; and

    • The category on the current EAD matches the “Requested Class” listed on the Form I-797C Notice of Action.

Non-nationals with a pending EAD renewal application whose EAD has expired and whose automatic 180-day extension has already expired will be granted an additional period of employment authorization and EAD validity, beginning on 4 May 2022, which will last up to 540 days from the expiration date of their EAD. These non-nationals may return to employment if they are still within the automatic 540-day extension period and are otherwise eligible. Non-nationals with a pending renewal request still covered by the automatic 180-day extension will be granted an additional extension of up to 360 days, for a total of 540 days after the current EAD expires. Non-citizens with a valid EAD and pending renewal application on May 4, 2022, or non-citizens who file an EAD renewal application on time by October 27, 2023, will be granted an automatic extension until 540 days if their EAD expires before renewal the request is processed. This automatic extension period ends upon notification of a final decision on the renewal application or at the end of the period up to 540 days after the expiry date of the applicant’s EAD, whichever comes first. .

USCIS faced a growing backlog of EAD applications, compounded by the coronavirus (COVID-19) pandemic that caused the government to temporarily close U.S. consulates and immigration offices. Closures, staffing shortages and severely reduced capacity caused by COVID-19 have resulted in an unprecedented backlog of 1.5 million EAD applications, preventing thousands of people from working legally and exacerbating labor shortages. While backlogs at the agency extend far beyond simple EADs, this new rule is intended to address the growing number of EAD cases pending at USCIS, allowing the agency to address staffing shortages and implement additional efficiencies with the goal of achieving a three-month cycle time. for EAD applications by the end of fiscal year 2023. The new rule will help avoid job disruptions for non-nationals with pending EAD renewal applications and avoid further disruption for American employers.

On October 27, 2023, automatic extensions of employment authorization and EAD validity will revert to the period of up to 180 days for eligible applicants who timely file Form I-renewal applications. 765.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 129

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