Since the Biden administration took office, they have been doing some policy changes, some regulatory changes, and some changes to their internal processes to reduce the overall processing time and backlogs. As part of that, they first announced in March 2022 their plan to increase the automatic extension period for Employment Authorization Document(EAD) from 180 to 540 days.
In May 2022, USCIS published a Temporary Final Rule that increased the automatic extension of EAD for certain applicants from 180 days to 540 days. Now, after a couple of years, the USCIS has published a final rule in the federal register, making the change permanent based on the federal rule-making process.
This article will summarize the changes, the actual effective date, how it would work, and who all does the 540-day auto extension applies to, such as H4 EAD, what the employer would use for I-9 verification, and other common questions.
Background: Temporary Final Rule, USCIS Analysis
USCIS during the FY 2020 and 2021, due to various reasons like changing priorities, reduced staffing levels, and COVID-19 issues, the processing times got hit very badly. USCIS implemented the first temporary final rule, increasing the EAD automatic Extension duration to 540 days in May 2022 to reduce the overall processing times of EAD applications.
Later in April 2024, USCIS published another temporary final rule extending the same 540 days auto extension for EADs until September 30, 2025, as about 800,000 applicants would risk losing work authorization, if the auto extension duration was back to 180 days.
Based on the latest data, USCIS did the analysis and believes that 540 days of automatic extension for certain EAD holders would be ideal and have less impact on the work authorization of many EAD holders. Below is a screenshot of their analysis that shows the automatic extension days vs. how many EADs could lapse.
After two temporary final rules, USCIS made a decision to make the policy change permanent and increase the automatic extension duration to 540 days for certain eligible EAD applicants.
USCIS Final Rule: 540 Days Automatic Extension of EAD for Certain Applicants
USCIS published a final rule in the federal register today, December 13th, 2024, that increases the automatic extension period from 180 days to 540 days for certain eligible EAD applicants. Below are the details.
- USCIS Final Rule Name: “Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Employment Authorization Document Renewal Applicants”
- Effective Date: January 13th, 2025.
- Official Rule Text: Increase of the Automatic Extension period of certain EADs to 540 Days
The final rule is no different from the previous temporary rule in terms of how it works, just that there are no end dates. Let’s look at the summary.
Certain EADs Automatic Extension up to 540 days
As per the final regulation, DHS is amending the existing regulations to permanently increase the automatic extension duration for certain EAD Applicants from 180 days to up to 540 days from the date of expiration on their existing EADs as outlined below :
- All the eligible EAD applicants, who apply for an extension with USCIS and currently get 180 days of of automatic extension will now get up to 540 days of automatic extension. For full list of current eligible automatic EAD extension applicants, you can check EAD Category codes Eligible for Automatic Extension.
- Up to 540 days of EAD automatic extension would be given to such applicants whose application was pending with USCIS on May 4th, 2022, or who filed for EAD renewals/extensions on or after May 4th, 2022. The next section on “who the new rule applies to” has more info on this.
- The 540 days of automatic extension would end as soon as a denial decision is made on the EAD application by USCIS or at the end of 540 days from the date of expiration on the EAD Card.
- For counting the automatic extension days, the 540 days of EAD automatic extension starts the day after the expiration date that is listed on the EAD Card.
Below is the screenshot of the key part of the rule as it appears in the Federal Register.
Who does the new rule apply to?
The new 540 days increase in the automatic extension period for certain EAD applicants is applicable to anyone who meets the below criteria:
Technically, as per the final rule, as it is effective from January 13th, 2025, the 540-day automatic extension applies to anyone who filed for extension on or after January 13th, 2025. However, the new rule does not take away the current temporary final rule, so all the provisions from the temporary final rule are also in effect. So, the applicants below continue to be eligible for the 540 days automatic extension.
- Eligible EAD renewal applicants with pending Form I-765 with USCIS as on May 4th, 2022.
- Eligible EAD renewal applicants, who timely filed Form I-765 with USCIS anytime on or after May 4th, 2022.
Effective Date of new Rule
The new rule will be effective immediately starting from January 13th, 2025.
EAD Categories Eligible for the Temporary 540 Days Rule
Below is the list of USCIS EAD Categories that the new 540 days rule will apply to:
| Employment Authorization Document(EAD) Applicant | Category Code on EAD Card | EAD Category Code in Form I-765 |
|---|---|---|
| Refugee | A03 | (a)(3) |
| Asylee (granted asylum) | A05 | (a)(5) |
| N-8 : Parent of international organization employee granted permanent residence N-9 : Dependent Child of international organization employee granted permanent residence | A07 | (a)(7) |
| Citizen of Micronesia, the Marshall Islands or Palau admitted as a nonimmigrant | A08 | (a)(8) |
| Granted Withholding of Deportation or Removal | A10 | (a)(10) |
| Temporary Protected Status (TPS) granted under 8 CFR 244.12 | A12 | (a)(12) |
| Spouse of E-1/E-2 Treaty Trader/Investor Spouse of E-3 specialty occupation professional from Australia | A17 | (a)(17) |
| L2 spouse of an L1 visa intracompany transfer | A18 | (a)(18) |
| Asylum applicant (w/ pending asylum application) who filed for asylum on or after January 4, 1995 | C08 | (c)(8) |
| Pending Adjustment of Status(AOS) Applicant | C09 | (c)(9) |
| Suspension of deportation applicants (filed before April 1, 1997) Cancellation of Removal applicants Cancellation applicants under NACARA | C10 | (c)(10) |
| Registry applicant based on continuous residence since January 1, 1972 | C16 | (c)(16) |
| Temporary Protected Status applicant under 8 CFR 244.5 | C19 | (c)(19) |
| Alien who has filed a completed legalization application for special agricultural workers | C20 | (c)(20) |
| Alien who has filed a completed legalization application under INA 245A | C22 | (c)(22) |
| LIFE Legalization applicant | C24 | (c)(24) |
| Certain H4 spouses of H1B holders, qualify for H4 EAD based on their spouse’s pending green card application | C26 | (c)(26) |
| Principal beneficiary of an approved VAWA self-petition Qualified child of a beneficiary of an approved VAWA self-petition | C31 | (c)(31) |
You can also check the USCIS EAD Auto Extension page to know more about the above list.
F1 Visa Holders applying for STEM OPT Extension who file under C03A, C03B & C03C Category codes, are not eligible for the 540-days automatic extension.
What are I-9 Compliance Documents for 540 days Rule?
As per law, an employer who hires anyone in the US is required to complete I-9 Form (Employment Eligibility Verification). The goal of this is to verify the employee’s identity and work authorization. It is to prevent illegal or undocumented workers. The I-9 form requires that employees verify a set of documents that are related to identity, visa status, and work authorization.
Below is the list of documents that employers need to use for I-9 compliance and avail of the 540 days automatic extension rule:
- The Expired EAD Card of the applicant that shows the relevant EAD category code regarding eligibility.
- If the EAD category code is A17(E Treaty, Investor, Others), A18 (L2 Spouse) or C26 (H4 Spouse), then they must also submit their valid I-94 form to the employer. You can get electronic I-94 Online.
- EAD Receipt notice ( I-797C notice of action for form I-765) that has relevant class requested stated as from the above list of codes in the previous section.
Trump Administration Impact on 540 Days Automatic Extension Rule
One of the biggest concerns among many EAD holders is what the Trump administration can do. Can they remove the 540 days and take it back to 180 days of automatic extension? or would they further reduce it?
Well, no one knows at this point. Technically, this 540-day automatic extension was properly done through a federal rule-making process. So, to remove that USCIS would have to go through similar process again, otherwise it will face hurdles in the court.
So, it can take time for the Trump administration, as they must go through the whole process of rule-making to change this. We need to wait and see if this is really a priority for them.
At least for now, this is really good news for many EAD applicants, including H4 EAD holders as they can work peacefully without worrying about USCIS processing times delays.
What do you think of the final rule? Do you think Trump Administration will revoke this? Share your thoughts in the comments section below
The auto extension is only applicable if your I94 is not expiring. For nearly 99% for H4 EAD this new rule does not benefit as i94 date and ead end date is the sam
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