In a significant development, the US Department of Homeland Security (DHS) is taking steps to prevent certain applicants from experiencing a lapse in employment authorization while their renewal requests remain pending. The agency is temporarily increasing the automatic extension period from a maximum of 180 days to 540 days from the expiration date stated on the work permit.[1] The agency estimates that the update will safeguard more than $29 billion in employee earnings while saving US employers more than $5 billion in labor turnover costs.
A large population will benefit from the automatic extensions, including individuals with pending adjustment of status applications (green card applications); certain spouses of E, H, and L nonimmigrants; asylum seekers with pending applications; as well as many others.[2] The rule is expected to reduce gaps in these individuals’ employment authorization and thereby protect employers’ continuity of operations and financial stability by avoiding labor turnover and replacement costs.
At the end of 2023, US Citizenship and Immigration Services (USCIS) implemented another change in policy benefiting employees and their employers by increasing the maximum validity period of work permits from 2 years to 5 years for certain noncitizens who must apply for an Employment Authorization Document (EAD) to work in the United States.[3]
The Gift of Time: The Automatic Extension
DHS made the announcement regarding the automatic extension through a temporary rule amending the existing regulations. Due to the agency’s inability to process the applications within its targeted timeframes, USCIS is attempting to prevent gaps in employment authorization and reduce the stress and uncertainly for individuals reliant on timely renewals to continue their employment legally in the United States.
USCIS discourages applicants wishing to renew an existing EAD from submitting a request more than six months before the expiration date.[4] However, according to USCIS, approximately 800,000 applicants are in danger of experiencing a lapse in their employment authorization through no fault of their own.[5] This is because their renewal applications will remain pending for extended periods of time (i.e., beyond the 180-day automatic extension). These lapses in work authorization result in substantial harm not only to applicants who timely filed their renewal requests but also to their employers.
Waiting Woes: Why USCIS Can’t Beat the Clock
Over the past decade, the typical processing time for work authorization renewals has significantly increased. Historically, USCIS was expected to adjudicate extension requests within a period of 90 days. Then, in 2016, USCIS revised the regulations to provide certain applicants with automatic extensions of their work authorization for up to 180 days from the expiration date of their work permits. In 2022, USCIS determined that the 180-day automatic extensions for renewals was no longer sufficient to prevent lapses in employment authorization. To mitigate the impact, DHS temporarily amended the regulations to lengthen the automatic extension to a maximum period of 540 days for qualifying submissions. That rule expired in October 2023, returning the maximum automatic extension period to 180 days. Now, USCIS has revived the 2022 rule to extend the facial validity date of EADs by up to 540 days for certain pending renewal applications.
Under the temporary rule, the 540-day extension applies to eligible EAD renewal applications filed on or after October 27, 2023, and that remain pending on or after April 8, 2024. The temporary rule also applies to eligible EAD renewal applications filed between April 8, 2024, and September 30, 2025.
According to USCIS, the most recent and significant contributing factor to the agency’s severe backlog and increased processing times for EAD renewal applications is a substantial increase in initial EAD applications based on pending asylum applications. These applications surged in early 2023 and their volume has continued to increase. In the temporary rule, USCIS also mentions a requirement to comply with a court-ordered deadline[6] resulting in the prioritizing of certain initial applications from asylum seekers over other applications.
Ready, Set, Verify: Determining Eligibility and Compliance
Employers and applicants should consult USCIS’ website to determine the employment categories eligible for an automatic extension. In general, the submission must be timely and properly filed for the automatic extension to apply. Further, eligible applicants completing EAD renewal forms must ensure the class or category of work authorization requested matches the one listed on their expiring employment authorization card.
It Is critical to confirm and cross-reference key dates, as the requirements to establish eligibility for the automatic extension may differ depending on when an applicant’s documents facially expire, when the applicant filed for a renewal, and the instructions on an applicant’s renewal receipt notice. Applicants and employers must also prepare for delays between the submission of an application and securing the receipt notice, as such delays could create a temporary de facto lapse in authorization. Applicants may wish to consider applying online rather than by mail, as online applicants receive an automatic receipt number upon submission and can monitor their case progress online.
Further, federal law requires employers to verify the employment authorization of new workers and to reverify employees who have temporary employment authorization using Form I-9 (Employment Eligibility Verification Form). In some circumstances, individuals are permitted to present documentation that appears facially expired. Therefore, for employers processing Form I-9, it is critical to be familiar with the documentation establishing automatic extensions, including receipt notices of timely filed employment authorization applications. Employers may seek guidance at I-9 Central to understand how various documents may combine to establish eligibility for the extension. As a best practice, we recommend maintaining printouts of corresponding USCIS guidance and webpages to substantiate how employees with facially expired documents satisfy the Form I-9 requirements.
Looking Ahead: Public Comments and Long-Term Impact
The agency intends to consider long-term solutions by soliciting public comments, evaluating the effects of ongoing and future policy and operational changes, and continuing to identify new strategies and efficiencies. USCIS is actively seeking input from stakeholders on several aspects of the rule. As this temporary rule is effective until September 20, 2027, the public comment period is critical in shaping its future—whether it becomes a permanent change or if adjustments are needed. Comments must be received by DHS on or before June 7, 2024. It is an opportunity for the public to offer comment on the following:
- Potential for Permanent Implementation. Stakeholders are encouraged to discuss whether the regulations should be revised permanently to lengthen the period of automatic extension to 540 days to prevent work authorization gaps.
- Appropriateness of the 540-Day Period. Comments are sought on whether the proposed 540-day extension is suitable or if a different duration should be established for some or all applicants on either a temporary or permanent basis.
- Alternative Solutions. The agency requests suggestions on alternative measures that could be implemented to mitigate the risk of applicants’ work authorization expiring during the pendency of renewal requests.
Some stakeholders have already provided their views, including that the extension will decrease the risk of employment disruption for applicants and provide additional stability during extended processing times. Others have commented that US employers will benefit from the continuous employment of workers without the need for frequent reverification.
The temporary rule is the agency’s immediate answer to the increase in EAD applications, but the goal is to implement long-term solutions to mitigate the risk of lapses in employment authorization for applicants who timely file for renewal. How the temporary rule moves forward and what long-term solutions USCIS puts into place will depend in part on feedback received from the public during the comment period.
APPENDIX A
Categories Eligible for Automatic Extensions
| The eligibility categories: | Description: |
| (a)(3) | Refugee |
| (a)(5) | Asylee |
| (a)(7) | N-8 or N-9 |
| (a)(8) | Citizen of Micronesia, Marshall Islands, or Palau |
| (a)(10) | Withholding of Deportation or Removal Granted |
| (a)(12) | Temporary Protected Status (TPS) Granted |
| (a)(17) | Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status* |
| (a)(18) | Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status* |
| (c)(8) | Asylum Application Pending |
| (c)(9) | Pending Adjustment of Status under Section 245 of the Act |
| (c)(10) | Suspension of Deportation Applicants (filed before April 1, 1997) Cancellation of Removal Applicants Special Rule Cancellation of Removal Applicants Under NACARA |
| (c)(16) | Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972) |
| (c)(19) | Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”. |
| (c)(20) | Section 210 Legalization (pending I-700) |
| (c)(22) | Section 245A Legalization (pending I-687) |
| (c)(24) | LIFE Legalization |
| (c)(26) | Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status |
| (c)(31) | VAWA Self-Petitioners |
[1] The automatic extension period is applicable to expiring Employment Authorization Documents (EADs or Forms I-766) for certain renewal applicants who have filed Form I-765, Application for Employment Authorization.
[2] See Appendix A.
[3] This includes applicants for asylum or withholding of removal, certain individuals with pending applications for US permanent residence, and filers for suspension of deportation or cancellation of removal.
[4] The USCIS website provides the following instructions in the “When to File” section for the Form I-765 (Application for Employment Authorization): “We recommend you do not file a request to renew your EAD more than 180 days before the expiration of your EAD.”
[5] DHS notes that of the 800,000 people impacted, approximately 80% are asylum seekers and the remaining 20% are primarily those with pending applications for US permanent residence and those with cancellation of removal. USCIS is applying the rule across a broad range of categories for operational reasons and to avoid confusion among employers and employees.
[6] The court ordered USCIS to process initial employment authorization requests from asylum seekers within 30 days.