USCIS provides the ability to work in the US on EAD (Employment Authorization Document) for certain visa holders and applicants. Also, certain EAD Category codes get 180 days of Automatic Extension as well during renewals. Despite having 180 days of the automatic extension, one of the major issues is the delays related to the EAD renewals. Many have lost jobs due to these delays. Also, some EAD categories like H4 EAD did not have the 180 days automatic extension in the past. USCIS was taken to court by H4 EAD holders for the delays and eventually, USCIS came to a settlement to automatically extended H4 EAD for 180 days.
USCIS announced in March 2022 its goal to streamline the overall processing times and reduce the backlogs for all types of applications by end of FY 2023. As part of that initiative, USCIS announced today, the increase in EAD automatic extension duration for certain EAD applicants from 180 days to 540 days. This is an interim solution until they streamline the overall processing times. In this article, we will review the details of the same, who all it applies to, and how it works.
Why USCIS is increasing the EAD Automatic Extension duration to 540 Days?
As per USCIS, before 2019, they were able to meet the internal 3 month processing time goal. But, due to various reasons like changing priorities, increase in other processing times, reduced staffing levels, COVID situation, etc., the processing times got hit very badly.
Below table is the summary of the processing times for the top 3 EAD categories filed with USCIS in the last few years from FY 2017 to FY 2021. If you see, the current processing times are anywhere from over 6 months to 12 months.
Also, if we check current H4 EAD processing times on VisaGrader( as in the below screenshot), which tracks changes in processing times, it is almost the same as other EAD categories.
As per USCIS data, by December 31st, 2021, they had about 66,000 pending EAD renewal applicants in this situation with EADs pending even after 180 days. Basically, all these 66,000 applicants would lose jobs their jobs, as they cannot work anymore after 180 days. This data compared to December 2020 data, they had only 3,300 such pending renewal applications beyond 180 days.
They also expect that another 14,500 applications may end up in such a situation every month in 2022 if USCIS does not do anything immediately. Hence, to address the overall processing times, USCIS is taking this interim step to increase the automatic extension period to 540 days until the backlog eases and they can come back to previous levels.
USCIS Temporary Rule for 540 Days Automatic Extension of EAD for Certain Applicants
USCIS published a temporary final rule in the federal register that increases the automatic extension period from 180 days to 540 days for certain EAD applicants. Below are the details.
- Temporary Final Rule Name: Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants
- Effective Date: May 4th, 2022.
- Official Rule Text: Temporary Increase rule in the Federal Register
Below are the various aspects that are addressed in the DHS published rule in Federal Register.
EAD Automatic Extension up to 540 days
As per the regulation, DHS is amending the existing regulations to allow a temporary increase of 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 :
- Up to 540 days of EAD automatic extension would be applicable for all eligible EAD holders, who currently get 180 days of automatic extension. A full list of such EAD holders and category codes is in the next section or you can check EAD Category codes with 180 days of Automatic Extension
- Up to 540 days of EAD automatic extension would be given for such applicants, who file for EAD renewals/extensions starting from May 4th, 2022 until October 26, 2023. The next section on “who does the new rule apply to” has more info on this.
- Similar to before, 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.
- After 18 months starting from May 4th, 2022, which is from October 26, 2023, the automatic extension duration for EAD would revert back to 180 days. It means that, if you file for EAD renewal after Oct 26th, you will only get 180 days of automatic extension.
Below is the actual screenshot of the key part of the rule in the Federal Register.
Technically, they would have the new rule in the Code of Federal Regulations until Oct 15th, 2025, but applicants will be given a provision to get the 540 days until Oct 26th, 2023. The reason to keep it valid until 2025 is to factor in someone who may file on Oct 25th, 2023. They need 720 days of buffer (540 is what they get +180 is how soon they can file).
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:
- Eligible EAD renewal applicants with pending Form I-765 with USCIS as of May 4th, 2022.
- Eligible EAD renewal applicants, who timely file Form I-765 with USCIS anytime in the 18-month period starting from May 4th, 2022, and ending October 26th, 2023.
- Also, in the interest of fairness, all the eligible EAD Applicants, who had timely filed EAD before May 4th, 2022, and are past 180 days, will resume their employment authorization for up to 540 days from the expiration date of their EAD Card.
- Basically, they are considering applicants who filed before May 4th and still have not reached 540 days from the EAD expiration date on their EAD card.
Effective Date of new Rule
The new rule will be effective immediately starting from May 4th, 2022. The reason to make it effective immediately, is to avoid employment gaps for non-citizens already using these certain EAD categories.
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|
|Asylee (granted asylum)||A5||(a)(5)|
|N-8 : Parent of international organization employee granted permanent residence|
N-9 : Dependent Child of international organization employee granted permanent residence
|Citizen of Micronesia, the Marshall Islands or Palau admitted as a nonimmigrant||A8||(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
|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||C8||(c)(8)|
|Pending Adjustment of Status(AOS) Applicant||C9||(c)(9)|
|Suspension of deportation applicants (filed before April 1, 1997)|
Cancellation of Removal applicants
Cancellation applicants under NACARA
|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
You can also check the USCIS EAD Auto Extension page to know more about the above list.
F1 STEM OPT EAD Applicants, who file under C03A, C03B & C03C Category codes, are not eligible for the 540-days automatic extension.
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
- Expired EAD Card that indicates relevant category code regarding eligibility.
- 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.
- Form I-94 Arrival-Departure Record.
Employers need to attach a copy of the USCIS webpage in addition to the above documents with Form I-9.
Next Steps, Guidance for Existing pending EAD Applicants
USCIS has given the below guidance as part of the next steps for the 540 days rule
- Starting from May 4th, 2022, USCIS plans to issue I-797C Receipt Notices for EAD applications with an explanation of the new temporary 540-day automatic extension period.
- However, USCIS will not issue any new revised I-797C Receipt Notices for existing EAD applicants, who already filed EADs with USCIS reflecting the new update.
- Even though the receipt notices issued by USCIS before May 4th, 2022 do not have any text on the 540-day automatic extension, they remain valid and can be used for availing of the new rule.
Overall, this is really good news for many EAD holders, who have been waiting for months to get their EAD applications approved. It is going to help many of the Adjustment of status and the H4 Visa holders, including many other categories that are stuck with USCIS.
What do you think of the new change? Do you think it will help EAD holders?