The U.S. Department of Homeland Security published on April 8, 2024, a Temporary Final Rule in the Federal Register that increases from 180-days to 540-days the automatic extension of work authorization for certain Employment Authorization Document (EAD) renewal applicants. Previously, EADs were automatically extended for 180-days, then 540-days in May 2022, and then 180-days effective October 27, 2023, when certain applicants timely and properly filed their EAD renewal applications (Form I-765).    

USCIS (United States Citizenship and Immigration Services) notes this temporary measure is to help prevent gaps in employment authorization while waiting for USCIS to adjudicate pending EAD renewal applications. In September 2023, USCIS also updated policy guidance in the USCIS Policy Manual to increase maximum EAD validity period to five years for initial and renewal EADs of certain eligible noncitizens. 

Who Is Eligible for the 540-day Auto Extension 

The 540-day auto EAD extension is limited to applicants seeking certain categories of EAD (Form I-765) renewals. These eligible categories include:  

• Refugees (A03) and asylees (A05) 
• Temporary Protected Status/TPS (A12 or C19 — the category on the EAD and the receipt notice for the renewal application do not need to match) 
• Pending adjustment of status applicants (C16) 
• H-4 (C26), E (A17), and L-2 (A18) dependent spouses of principal nonimmigrants with an unexpired I-94 showing continued nonimmigrant status validity periods up to at least the 540-day auto extension period 

Recipients of Deferred Action for Childhood Arrival (DACA, category C33) are not eligible for the automatic EAD extension.   

Eligible EAD applicants who have timely and properly filed their renewal applications on or after Oct. 27, 2023, and have EAD renewal applications pending on the date of publication of the Federal Register, April 8, 2024, are eligible for the 540-day auto extension. Also, eligible applicants who timely and properly file their EAD renewal applications between April 8, 2024, and September 30, 2025, are eligible for the 540-day auto extension. If the EAD renewal application is denied, then the auto extension ends. 

I-9 Considerations  

Employers are required to reverify an employee’s employment authorization before the employee’s work authorization expires.  For those employees eligible for the then 180-day auto extension, the Form I-9 should have been reverified.  

USCIS has provided guidance on how to complete the Form I-9 for this auto-extension, which includes looking at the category code on the EAD (Form I-766), the expiration date of the EAD, and the Received Date on the Receipt Notice (Form I-797C) for the EAD renewal application. Employers may keep a copy of the USCIS webpage describing the temporary EAD extension of up to 540 days with the employee’s Form I-9.  For more information, go to the USCIS M-274 Handbook for Employers, Section 5.0, which was updated on 04/08/2024, and Sections 5.1 – 5.3, which also were updated on 04/08/2024.  

USCIS has indicated that it will issue Receipt Notices for certain eligible EAD renewal applications filed on or after April 8, 2024, that refer to the 540-day auto extension. USCIS has indicated that for individuals who filed their EAD renewal applications on or after October 27, 2023 and before April 8, 2024, presenting their Form I-797C receipt notice that refers to the 180-day extension, along with facially expired EAD (and also unexpired Form I-94 for H-4, E or L-2 dependent spouses) is sufficient proof to demonstrate eligibility for up to 540-day automatic extension under this rule.

Foster will continue to monitor EAD and Form I-9 updates and guidance and will make future updates available via the firm’s website at www.fosterglobal.com/.