Automatic Extension Period for Certain EADs will Decrease on October 27, 2023

Rule change may cause workforce instability due to a lack of evidence of employment authorization

In May 2022, United States Citizenship and Immigration Services (USCIS) issued a Temporary Final Rule (TFR), increasing the extension period for certain Employment Authorization Documents (EAD or Form I-766) from 180 days to 540 days. This was done to limit the number of individuals who lost jobs or otherwise had a gap in employment authorization due to USCIS's inability to adjudicate the renewal application and issue the new EAD within 180 days of the old card expiring.

That temporary increase will expire on October 26, 2023. Certain EAD renewals received by USCIS after October 26, 2023 (as reflected on the Form I-797C) will only give the employee a 180-day work authorization extension, as opposed to the 540 days we have become accustomed to. Importantly, this is a prospective decrease, meaning that anyone with a Form I-797C with a received date between May 22, 2022, and October 26, 2023, is entitled to the 540-day extension period.

USCIS is reporting that processing times for certain EAD renewals can range from 8-16 months (with a median of 2.7 months), which could result in the extension period being exhausted prior to receiving the new card.

Individuals may not continue working if their current work authorization expires and they cannot show evidence of continuing work authorization. Employers are reminded that they should keep abreast of work authorization end dates and have policies in place to determine the appropriate action, such as termination or suspension, when an individual cannot provide proof of continuing work authorization.

More information on employment authorization extensions can be found here, an EAD extension calculator can be found here, and information on USCIS processing times can be found here.

Posted: August 17, 2023

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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