5.2 Temporary Increase of Automatic Extension of EADs from 180 Days to 540 Days

(This guidance no longer applies to newly hired employees.) The temporary rule applied to individuals with a pending Form I-765 renewal application and employment authorization and/or an EAD who were eligible for the original 180-day automatic extension, and:

• The automatic extension lapsed prior to May 4, 2022. Such individuals received an automatic resumption of their employment authorization and/or EAD validity for an additional period beginning from May 4, 2022, and up to 540 days from the expiration of their employment authorization or the “Card Expires” date on their current EAD.
• The “Card Expires” date on the EAD has passed but they were still covered under the automatic extension of up to 180 days. They had an additional extension of up to 360 days, for a total of up to 540 days past the expiration of their employment authorization and/or “Card Expires” date stated on their current EAD.

• Employment authorization and/or the EAD’s expiration date had not passed and their Form I-765 renewal applications remained pending. Such individuals received an automatic extension of employment authorization and/or EAD validity of up to 540 days if their employment authorization and/or the “Card Expires” date on their current EAD expired before the Form I-765 renewal application is adjudicated.
• The EAD renewal application was filed while the temporary automatic extension increase was applicable. Such employment authorization and/or EADs were automatically extended for up to 540 days if employment authorization and/or the “Card Expires” date on the EAD expired before the Form I-765 renewal application was adjudicated.

The criteria for receiving this increased automatic extension did change from the criteria applicable for an extension of up to 180 days. Qualifying individuals must:

• Have properly filed an application to renew their employment authorization and/or EAD on Form I-765, Application for Employment Authorization, before the EAD expired (except certain employees with Temporary Protected Status (TPS)), and the Form I-765 EAD renewal application remained pending.
• Have been issued a Form I-797C, Notice of Action, issued for the corresponding Form I-765 EAD renewal application, that stated an eligibility category that was the same as the eligibility category stated on the front of the EAD except:
  • In the case of an EAD and I-797C, Notice of Action, each may have contained either an A12 or C19 TPS category code; the category codes did not have to match.
  • For H-4 (C26), E (A17) and L-2 (A18) dependent spouses, whose Form I-797C must have been accompanied by an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status.
• Have been within one of these eligibility categories that qualified for the automatic extension: A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19. The eligible categories were published on the USCIS Automatic EAD Extension page. Some category codes on the EAD may have included the letter ‘P’ such as C09P. Employers should have disregarded the letter ‘P’ when they compared the category code on the EAD with the category code on the Form I-797C, Notice of Action. *Only certain employees who filed a Form I-765 renewal application within categories A17, A18, and C26 were eligible for an automatic extension. See A17, A18, and C26 guidance below.

Employees who presented employers with a Form I-797C, Notice of Action, referring to an automatic EAD extension of up to 180 days were eligible for the extension of up to 540 days when the above eligibility requirements were met.

Updating Form I-9 for an Employee with An Existing 180-Day Automatic Extension

If your employee’s Form I-9 was completed on or after May 4, 2022, showed an EAD that was automatically extended by 180 days, the employee was eligible to receive an additional extension of 360 days as provided in the temporary final rule (87 FR 26614), for a total of 540 days counted from the “Card Expires” date stated on the face of the EAD. Employees whose EAD Category Codes are A17, A18 and C26 may not necessarily receive the full 360-day extension, and this is explained below in the For Category Codes A17, A18, and C26 guidance.

You must have updated the Additional Information field in Section 2 of the employee’s Form I-9 to include the new expiration date no later than the date the employee’s 180-day automatic extension ended. Employers were not required to re-examine documents; however, your employee may have presented a Form I-797C, Notice of Action, EAD and, if applicable, Form I-94 again if you needed to re-examine the “Card Expires” date and the category code(s) to determine eligibility and/or accurately calculate the increased automatic extension.

Your employee’s Form I-797C, Notice of Action, may have referred to an automatic EAD extension of up to 180 days and was acceptable evidence of the extension of up to 540 days, provided the above-described eligibility requirements are satisfied.

You should have updated the employee’s original Form I-9 to add 360 days to the employee’s EAD 180-day automatic extension date located in Section 2. You could have also determined the automatic extension date by adding 540 days to the “Card Expires” date shown on the EAD. Note that if the employee’s original Form I-9 was completed on a Form I-9 version that was no longer valid, you should have entered the new EAD expiration date in the Additional Information field in Section 2 of a new Form I-9 and retained it with the employee’s original Form I-9.

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 Category Codes A17, A18, and C26

This guidance applied to employees who fell within category codes A17, A18, or C26 and therefore were either H-4, E, or L-2 dependent spouses, including E-1S, E-2S, E-3S and L-2S class of admission codes on Form I-94. Your employee’s automatic extension period could not exceed the Form I-94 end date. Under this circumstance, your employee could have had an extension that was greater than 180 days but less than the additional 360 days.

Your employee’s Form I-797C, Notice of Action, may have referred to an automatic EAD extension of up to 180 days but was acceptable evidence of the extension of up to 540 days, but could not exceed the Form I-94 end date, provided the above-described eligibility requirements were satisfied.

In the Additional Information field of Section 2, you should have entered either the Form I-94 end date or the EAD “Card Expires” date plus up to 360 days, whichever date was earlier. Note that if the employee’s original Form I-9 was completed on a Form I-9 version that is no longer valid, you should have entered the new expiration date in the Additional Information field in Section 2 of a new Form I-9, initialed and dated the notation, and retained it with the employee’s original Form I-9.

Employment Authorization Resumption for Certain Categories Whose 180-Day Extension Had Expired as of May 4, 2022

(This guidance no longer applies to newly hired employees.) At its inception, the temporary final rule sought to reinstate expired EADs for certain categories who had a 180-day automatic extension that had passed without having received a new EAD. Beginning May 4, 2022, employment eligibility and/or EAD validity resumed for a period not to exceed 540 days from the “Card Expires” date on the EAD for qualifying noncitizens with a pending renewal Form I-765, Application for Employment Authorization, who experienced a gap in employment authorization and/or the validity of their EAD because their 180-day automatic extension ended prior to May 4, 2022.

The rule did not cure any unauthorized employment that may have accrued prior to issuance of the rule. To calculate whether there was any automatic extension time remaining, employers counted 540 days from the expiration date stated on the front of the EAD. If an employee fell within category codes A17, A18, or C26 and therefore were either H-4, E, or L-2 dependent spouses, including E-1S, E-2S, E-3S and L-2S class of admission codes on Form I-94, employers counted up to either 540 days or the expiration date on Form I-94, whichever was earlier. The last possible automatic extension based on this resumption of employment authorization was valid through April 28, 2023. 

Your employee’s Form I-797C, Notice of Action, may have referred to an automatic EAD extension of up to 180 days and when combined with their EAD, was acceptable evidence of the extension of up to 540 days, provided that the above-described eligibility requirements were satisfied.

Reverification

You should have reverified employees’ employment authorization when their automatic extension ended, and no later than the date their employment authorization expired.