The Department of Homeland Security (DHS) announced a new rule which permits certain noncitizen applicants to continue working without disruption while their requests for employment authorization are pending adjudication. Qualified individuals must have a pending Form I-765 (Application for Employment Authorization) and meet other criteria (timely filed, same employment category, received a Form I-797C notice) to continue working for up to 540 days from the expiration date stated on their Employment Authorization Documents (EADs or Forms I-766).
What is an EAD?
An Employment Authorization Document (EAD) also known as a work permit may serve as evidence that a noncitizen is authorized to work in the United States for Form I-9 (Employment Eligibility Verification) purposes. An EAD may also be used to obtain certain benefits such as a state issued driver’s license.
Who benefits from the new rule?
The rule does not benefit those filing new work authorization requests. The provision is limited to qualified individuals renewing their Form I-765 (Application for Employment Authorization) including those whose work authorization lapsed.
For applicants meeting the criteria, work authorization automatically resumes from May 4, 2022, for any time remaining within the 540-day automatic extension period.
The agency only designated certain categories to be eligible, including individual asylum seekers and pending adjustment of status applicants. H-4, E, and L-2 dependent spouses are also eligible but may not necessarily receive the full extension. An individual’s automatic extension period may terminate prior to the maximum period (either 540 or 180 days) either automatically when USCIS issues a denial of the applicant’s Form I-765 renewal application or upon notice.
What evidence will be provided?
|Renewal I-765 Application Filed||Duration of Automatic Extension||Notice from USCIS|
|Before May 4, 2022||Eligible for 540 Day Automatic Extension – even if the EAD is expired||DHS will not issue new Form I-797C, Notices of Action. Notices previously issued that refer to a 180-day automatic extension still meet the regulatory requirements.|
|May 4, 2022, and ending October 26, 2023||Eligible for 540 Day Automatic Extension||Beginning on May 4, 2022, USCIS will issue Form I-797C, Notices of Action, describing the 540-day automatic extension period.|
|After October 26, 2023||Eligible for 180 Day Automatic Extension||USCIS will issue Form I-797C, Notices of Action, with instructions.|
Why did DHS make this change?
According to agency, there are 1.5 million pending requests for work authorization. Processing times have increased significantly over the past few years as a result of the pandemic-related impact on operations and revenue, resource and financial constraints imposed upon the agency, and an increase in applications. The agency recognizes that processing delays result in noncitizens losing their jobs and income, and employers being faced with finding replacements when the U.S. economy is experiencing more job openings than available workers. According to DHS, approximately 87,000 applicants are, or soon will be, past the 180-day automatic extension period. Further, DHS estimates that approximately 14,500 or more renewal applicants, the majority of whom are individuals seeking asylum, will lose their work authorization each month unless action is taken to address the situation.
Completing the Form I-9 (Employment Eligibility Verification)
DHS has updated its website and the M-274, Handbook for Employers, to provide specific guidance for employers completing the Form I-9. A brief summary is provided below:
|When an employee chooses to use an EAD and Form I-797C receipt notice to complete Form I-9, the employee and employer should use the extended expiration date to complete Section 1 (if applicable) and Section 2 of the Form I-9 and reverify no later than the date that the automatic extension period expires.|
|Current Employment||Employers must update the employee’s Form I-9 upon the employee’s 180-day automatic extension end date (or sooner) to reflect the extended expiration and reverify no later than the automatic extension expiration date.|
|Renewals for Applicants Who Experienced a Lapse of Work Authorization Validity Prior to May 4, 2022||
If the employee resumes work under this rule and is rehired, the employer may reverify employment authorization on the employee’s Form I-9 or complete a new Form I-9.
As a best practice, employers should attach DHS’ webpage describing the temporary EAD extension of up to 540 days to the employee’s Form I-9 when an employee presents a Form I-797C referring to an extension of 180 days.
The public may submit comments and provide feedback on the new rule through the Federal Register notice until July 5, 2022.