USCIS Increases Automatic Extension Period for Certain Form I-765 Employment Authorization Applicants
On May 4, 2022, United States Citizenship and Immigration Services (“USCIS”) announced a temporary final rule to increase the automatic extension period for employment authorization and Employment Authorization Documents (“EADs”) in certain categories, for up to 540 days. In effect, this rule provides an additional automatic 360-day extension on top of the usual 180-day extension (for a total of up to 540 days) period for eligible renewal applicants.
The Form I-765 Renewal Process
Typically, certain renewal applicants who file a Form I-765, Application for Employment Authorization, qualify for an automatic extension of 180-days for their expiring employment authorization or EADs. This allows renewal applicants to continue working during that extension period, while their application is pending.
Both the regular 180-day automatic extension period and the temporarily-increased extension period are geared to help prevent disruptive gaps in work authorization and documentation. The USCIS implemented this newly-announced, additional extension period to help address the agency’s pending EAD caseload. Operational challenges, exacerbated by emergency measures during the COVID-19 pandemic and increased renewal filing rates, have resulted in “processing times for Form I-765 increasing to such a level that the 180-day automatic extension period for Form I-765 renewal applicants’ employment authorization and/or EADs is temporarily insufficient.” 87 Fed. Reg. 26614 (May 4, 2022).
The Temporary Automatic Extension Period
Under the temporary final rule, the increased extension period is available to eligible renewal applicants who properly filed the Form I-765 either:
- Before May 4, 2022, and the 180-day automatic extension has since expired;
- Before May 4, 2022 and the 180-day automatic extension has not yet expired; or
- Between May 4, 2022 and October 26, 2023 (including those dates).
Renewal applications filed after October 26, 2023 will be subject to the usual 180-day automatic extension period. To provide acceptable proof of employment authorization to employers, employees should submit the Form I-797C Notice of Action receipt,[1] together with the expired EAD. Notably, the category on the current or expiring EAD must match the “Class Requested” listed on the Form I-797C Notice of Action Receipt Notice. The extension period is added to the expiration date of the employment authorization and/or EAD.
Only these following Form I-765 categories are eligible for automatic extensions:
|
Form I-765 Eligibility Category |
Description |
|
(a)(3) |
Refugee |
|
(a)(5) |
Asylee |
|
(a)(7) |
N-9 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] USCIS does not plan to issue updated Form I-797C notices to eligible applicants who already filed the Form I-765 renewal application before May 4, 2022. However, qualifying individuals will still receive the automatic 540-day extension under the temporary final rule, even if their previously-issued Form I-797C does not refer to the increased employment authorization.