As part of their I-9 obligations, many employees provide an Employment Authorization Document (EAD) as evidence of their authorization to work in the United States. Such EADs have an expiration date, and those dates can vary based on the category upon which the EAD is based. With some of these categories, USCIS allows individuals to continue to work while an extension application is pending even if the EAD card has expired. Historically, USCIS granted an automatic 180-day extension.

In May 2022, after facing much pressure over increased processing times, USCIS implemented a temporary final rule that extended the validity of such EADs for up to 540 days.

As part of that final rule, however, the USCIS announced the 540 day extension will sunset on October 26, 2023.  This means that certain renewal applications filed on or after October 27, 2023, will only qualify for an automatic extension of up to 180 days.

Applicants will continue to qualify for the 540-day extension if their application for an extension is filed on or before October 26, 2023, and they meet the following criteria:

• Properly filed Form I-765 (Application for Employment Authorization) for a renewal of their employment authorization before their current employment authorization expires;
• The renewal application is under a category that is eligible for the automatic extension; and
• Form I-765 is filed requesting an extension of employment authorization based on the same category as the expiring category (unless the category is based on Temporary Protected Status, in which case categories A12 or C19 can be used interchangeably).

Applications for EAD extensions filed on or after October 27, 2023 will revert back to the 180-day extension, provided they are filed under a qualifying category.

USCIS has not indicated on their website whether the Temporary Final Rule will be extended. The immigration team of Nilan Johnson Lewis will continue to closely monitor any updates from USCIS regarding the Temporary Final Rule.