How the USCIS Temporary Final Rule for Automatic Extensions Affects Employers

The U.S. Citizenship and Immigration Services (USCIS) recently announced a Temporary Final Rule (TFR) that lengthens the automatic extension period for up to 540 days for some Employment Authorization Document (EAD) categories. This extension is already in effect and will remain in effect until October 15, 2025.

In the past, some EAD categories were eligible for an extension, but only for 180 days. However, this Temporary Final Rule will be very helpful to both employees and employers by reducing the likelihood of employment gaps occurring for foreign nationals due to their employment authorization expiring while their Form I-765 application is pending.

How The Temporary Final Rule Affects Your Employees

For eligible employees whose automatic extension expired before May 4, 2022, their employment authorization started again automatically. The validity period started on May 4, 2022, and remains in effect for as long as 540 days from the EAD card’s expiration date.

Eligible employees that still have time left in their 180-day extension can receive 360 additional days, which means they can have 540 days beyond the expiration date of their EAD card. Whereas eligible employees who have an EAD card that hasn’t expired and have a pending Form I-765 will be given an automatic extension of up to 540 days once their EAD card expires, but their Form I-765 has not yet been adjudicated.

Employees who file their application for an EAD renewal from May 4, 2022, to October 26, 2023, will have their EAD automatically extended for up to 540 days should their EAD card expire before the adjudication of their Form I-765 if they are eligible.

The Effect of the Temporary Final Rule on I-9 Compliance

If you have an employee whose EAD has expired, the following steps should be taken:

  • Look at the employee’s EAD card, Notice of Action, Form I-797C, and Form I-94 (if applicable) to see if they are eligible for an automatic extension.
  • Check to see whether or not the employee has remaining automatic extension time.
  • Update an employee’s Form I-9 by the last day of the employee’s 180-day extension.
  • Enter the employee’s Employment Authorization Document in the document title field.
  • Enter the receipt number for Form I-797C in the field for the Document Number.
  • Enter the date that is 540 days past the date of expiration on the EAD if the received date that is on the Form I-797C is on or before October 26, 2023. Or, if the received date on the Form I-797C is past October 26, 2023, enter the date that will be 180 days past the card expiration date on the EAD.

It can be difficult to complete Form I-9 for foreign national employees. The best way to complete Form I-9 without making potentially costly mistakes is to use an electronic I-9 management tool. This can guide employers through the employment verification process and make sure that hiring personnel know which documents are acceptable for proving work authorization.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.