DHS Rule Increases Automatic Extension of Work Authorization for Certain Eligible Renewal Applicants

On May 4, 2022, the U.S. Department of Homeland Security issued a Temporary Final Rule (TFR) automatically extending the work authorizations for certain renewal applicants listed on the USCIS website. Normally, the DHS regulations provide an automatic extension of 180 days from the expiry date stated on the Employment Authorization Document (EAD). The May 4, 2022, TFR increased the automatic extension from 180 days up to 540 days. The primary objective for the additional 360-day extension is to prevent gaps in work authorization due to the USCIS’ significant processing delays for work permit renewal applications.

To be eligible for the 540-day automatic extension:

  • The applicant must have already been issued an EAD card in one of the categories listed by the USCIS. This list does not include DACA and F-1 OPT-based work authorizations.
  • The current category listed on the existing EAD card must be one that is listed on the website as eligible for an automatic extension.
  • The applicant must have timely filed an application to renew the employment authorization, i.e., must have filed the renewal application before current EAD card expired.
  • The filed renewal application must have requested an extension of employment authorization based on the same category as the current/expired card.
  • The renewal application must remain pending. If the renewal application is denied, the extension period automatically ends.

Additionally, for dependent spouses in H-4, L2 and E status, an unexpired Form I-94 indicating H-4, E or L-2 nonimmigrant status must accompany Form I-797C when presenting proof of employment authorization for I-9 purposes. It should be noted that applicants under these categories can only receive automatic extensions until the expiry date of their I-94 or up to 540 days, whichever is shorter.

Finally, the TFR applies to eligible applicants with pending renewal applications:

  • Filed before May 4, 2022, and the 180-day automatic extension has since expired;
  • Filed before May 4, 2022, and the 180-day automatic extension has not yet expired; or
  • Filed between May 4, 2022, and October 26, 2023, inclusive of these dates.

If the renewal application is filed after October 26, 2023, the normal 180-day automatic extension period will apply.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.