Automatic 540-Day EAD Extension Will Expire on Oct. 26, 2023
1. Automatic Extension of Certain Employment Authorization Document (EAD)
An Employment Authorization Document (EAD) is a work permit issued to individuals seeking various U.S. immigration benefits. While eligible for EADs, they may request renewals of the EADs by filing Form I-765, Application for Employment Authorization.
Normally, certain applicants who have filed such Form I-765 application qualify for an automatic extension of the EADs if they:
- Properly filed Form I-765 for a renewal of their EADs before their current EADs expired, and
- Are otherwise eligible for a renewal, which means that:
- Their renewal application is under a category that is eligible for an automatic extension (see the list of categories below); and
- The category on their current EADs matches the “Class Requested” listed on their Form I-797C Notice of Action, Receipt Notice.[1]
The automatic extension period for EADs is normally up to 180 days.
2. Temporary Final Rule Increasing Automatic Extension Period for Certain EADs to 540 Days
On May 4, 2022, DHS published a temporary final rule increasing the automatic extension period applicable to certain categories’ EADs. The rule increased the automatic extension period from up to 180 days to up to 540 days. The automatic extension time is counted from the expiration date stated on their EADs.
This up to 540-day automatic extension is available to eligible renewal applicants with pending applications if they filed their Form I-765 renewal applications either:
- Before May 4, 2022, and their 180-day automatic extension has since expired;
- Before May 4, 2022, and their 180-day automatic extension has not yet expired; or
- Between May 4, 2022, and October 26, 2023, inclusive of these dates.
3. Automatic 540-Day Extension Will Expire on October 26, 2023
Under the temporary final rule, the automatic extension of up to 540 days will expire on October 26, 2023. Accordingly, the normal 180-day automatic extension period will apply to Form I-765 renewal applications filed after October 26, 2023.
It appears that USCIS would not likely extend the temporary final rule. Accordingly, individuals who are eligible to receive an automatic extension of up to 540 days are encouraged to file their Form I-765 prior to October 26, 2023.
4. Categories Eligible for Automatic Extensions
Here is the list of the categories eligible for the automatic extensions of EADs:
| Category Listed on Form I-765 Renewal Application | 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 |
* Individuals with a TPS-based EAD may receive an automatic extension of their EADs through:
- Publication of a Federal Register notice extending the TPS designation of the individual’s country, if the notice also authorizes an automatic extension of covered individuals’ existing EADs; or
- Through this automatic extension.
**USCIS considers certain spouses of E and L workers employment authorized incident to status. Thus, more options are available for them to demonstrate their employment authorization.
5. Calculation of the New EAD Expiration Date Based on the Automatic Extension
If I-765 applicants meet the eligibility requirements for the automatic extension of their EADs, they can calculate their new EAD expiration date here (except when the employment authorization category is A17, A18, or C26).
For more details on the temporary final rule, please visit here.
[1] If renewal applicants are a Temporary Protected Status (TPS) beneficiary or pending applicant, their EADs and the Receipt Notice must contain either the A12 or C19 category. However, the categories do not need to match each other. In addition, for H-4, E, and L-2 dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status (including E-1S, E-2S, E-3S, and L-2S class of admission codes) must accompany Form I-797C when presenting proof of employment authorization to an employer for Form I-9, Employment Eligibility Verification, purposes.
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