The United States Citizen and Immigration Services and the Department of Homeland Security have published a temporary final rule that extends certain renewal applicants’ employment authorization documents (EAD). This rule took effect on May 4, 2022. These applicants must have filed Form I-765, which is the form for a renewal of employment authorization before the EAD expires. The applicant must also be otherwise eligible for the renewal.
If an employee’s Form I-9 indicates that their EAD was automatically extended by 180 days which was the period of the automatic extension before the new temporary final rule took effect, they will now be eligible for an extension of an additional 360 days due to the new rule. This will mean they can receive a total of 540 days past the date of expiration listed on the EAD card. Not all employees will be eligible for the full extension, such as employees with A17, A18, and A26 EAD category codes.
In order to ensure an employee is eligible, it is important to update their Form I-9 by the date that the 180-day extension for an employee ends. It is also a good idea to keep a copy of the employee’s documents as these can be used to make sure your employee is eligible for the extension and to help calculate the extension if they are eligible.
It is not necessary for employers to re-examine their employees’ documents. Although, an employee can show Form I-797C, Notice of Action, if necessary, as well as their EAD and Form I-94 if the employer needs to check the expiration date and category codes to see if the employee is eligible and accurately determine their automatic extension. The employee’s Form I-797C might state the 180-day extension, but this will work as evidence for an extension of up to 540 days as long as the eligibility requirements are met.
An employee’s EAD 180-day automatic extension date could be located in different places depending on their Form I-9 documentation history. It could be in Section 2 of the Additional Information field or in the Document Expiration Date field. To calculate the new expiration date based on the extension, add 360 days to this date. After calculating this new expiration date, enter it in Section 2 Additional Information field. Another way to calculate the date would be to add 540 days to the card expiration date listed on the EAD.
This extension could be very helpful for employers already suffering from labor shortages by allowing them to keep more of their current employees. It will also lessen the risk of having to dismiss an employee due to a lapse in their EAD.
This change will delay the need to reverify these employees’ Form I-9 due to the extended EAD. But, it is essential to be ready to reverify Form I-9 for any employees whose Form I-9 would have expired as well as complete the Form I-9 for any new employees. The best way to do this is with an electronic I-9 management tool. This can guide employers through the employment verification or reverification process and ensure that HR personnel know which documents are suitable to prove work authorization.
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