On April 4, 2024, USCIS announced a temporary final rule (“TFR”) that will increase automatic extensions of certain employment authorization documents (“EAD(s)”) from 180 days to 540 days in an effort to avoid lapses in employment authorization. The final rule will be published April 8, 2024. Once published, the rule will appear in the Federal Register.
USCIS Director Ur M. Jaddou announced that while USCIS has increased EAD processing times over the last year, they have also received a record number of new employment authorization documents. In an effort to reduce lapses in employment authorization and provide USCIS with the opportunity to consider long-term solutions, automatic extensions of certain EADs will be extended from 180 days to 540 days. The TFR will apply to two categories of EAD applicants that would otherwise have qualified for a 180-day extension: (1) applicants who timely and properly filed their Form I-765 applications on or after Oct. 27, 2023, if the application is still pending on April 8, 2024; and (2) applicants who timely and properly file their Form I-765 application on or after April 8, 2024 and on or before Sept. 30, 2025 (540 days after publication of this temporary final rule in the Federal Register). The following EAD categories are eligible for this extension:
| Categories Eligible for Automatic Extensions | |
| Eligibility Category | 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 |
USCIS has indicated that the TFR does not apply to F-1 students applying for an OPT-STEM extension or other categories not mentioned above. The extension also does not apply to those changing from one EAD category to another.
For those employers supporting EAD extension of employees eligible for this extension, it continues to be important that EAD renewals are timely filed. In light of potentially slower processing of Form I-765, it may become more imperative that employees benefit from this extension.
Employers should be prepared for employees to present I-797C receipt notices that may extend the validity of an EAD 540 days after the expiration date printed on the EAD. Employers can review I-9 Central for guidance on I-9 completion for eligible employees.
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Manish Daftari
Partner
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