Best Practices Under USCIS’s 540 Day Automatic Extension Rule

The Department of Homeland Security (DHS) United States Citizenship and Immigration Services (USCIS) recently announced that the automatic extension period would be lengthened for some renewal applicants. The Temporary Final Rule published by the USCIS details the changes being made to the automatic extension period, including who qualifies for it.

Before 2019, the USCIS was typically able to meet its internal processing goal of three months. However, several issues, such as an inability to increase fees, insufficient staffing, more interview requirements, and the COVID-19 pandemic, led to backlogs in processing. This made it difficult for some workers to get their I-765 renewed in time to avoid employment gaps. In addition, many workers with EADs were already eligible for an automatic 180-day extension of their EAD card, but, in some cases, this still wasn’t enough time to avoid gaps in employment. However, the new Temporary Final Rule will allow eligible EAD applicants an extra 360-day extension for a total of up to 540 additional days. This should be very helpful for many employees and employers who are at risk of employment gaps.

Although, there are some things to keep in mind concerning EAD extensions and re-verifications. The auto-extension of 540 days will remain in effect only through October 27, 2023. After this time, the 180-day automatic extension will again be in effect. The auto extension only applies to certain eligible EAD renewal applicants.

There are some things employers can do to help ensure that re-verification or extensions of employment authorization go smoothly, such as:

  • Remind any employees with an EAD to apply well ahead of the card expiration date for extended permission.
  • An extension application notice will only be accepted for an auto extension if the category code that is on the current EAD is the same as the one listed on the receipt given. There is an exception to this for Temporary Protected Status candidates.
  • Any extension notice is required to have an application receipt date by the United States Citizenship and Immigration Services that is on or before the current EAD’s expiration. If the receipt shows an expiration date that is after this, it will not qualify for an auto extension.

For those employers that do hire foreign nationals, it will be necessary to complete Form I-9. This can be confusing due to the different forms of documentation employees may present. However, an electronic I-9 management tool can make the process easier by guiding hiring personnel through the complete process and ensuring that forms and documentation are stored correctly.

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