Today USCIS has released a Temporary Final Rule (TFR) that is scheduled to be published in the Federal Register tomorrow, May 4, 2022, and which will be effective immediately upon publication. The TFR increases the automatic extension period for employment authorization and Employment Authorization Documents (EADs), available to certain categories of EAD renewal applicants, from 180 days to 540 days. This includes EADs issued in the following categories:
| Eligibility category listed on Form I-765, EAD 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 nonimmigrant status |
| (a)(18) | Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 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 |
The TFR will help applicants to avoid a lapse in their employment authorization. According to the TFR, USCIS simultaneously is implementing backlog reduction plans for EAD processing, and plans to reduce the EAD processing time to 90 days.
Moreover, the TFR states that those applicants who already filed an EAD renewal application and whose 180-day automatic extension previously expired, may return to work if they are still within the 540-day window following expiration of their prior EAD cards.
Beginning on October 27, 2023, the automatic extensions of EAD will revert back to the 180-day period for those with timely filed EAD renewals. Until then, anyone with a timely filed and pending EAD renewal application as of May 4, 2022, and anyone who timely files an EAD renewal application in one of the above-noted categories prior to Oct. 27, 2023, will be granted an automatic extension of up to 540 days if their EAD expires before the renewal application is processed.
The auto-extension ends upon approval or denial of the renewal application or upon the end of the 540-day window beginning on the expiration date of the prior EAD—whichever is earlier.
If you have questions, contact the Harris Beach immigration team.
Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.