On, May 4, 2022 the Department of Homeland Security published a temporary rule (87 FR 614) that temporarily increases the automatic extension period to up to 540 days for employment authorization and/or Employment Authorization Documents (EAD, Form I-766) available to certain applicants who have filed Form I-765, Application for Employment Authorization, renewal applications. This rule also provides eligible non-citizens with a pending renewal application:
- An additional up to 360-day extension if their EAD is still covered under the 180-day automatic extension, for a total of up to 540 days past the “Card Expires” date of the current EAD; or
- An additional period and resumption of employment authorization and/or EAD validity if their 180-day extension has lapsed, for up to 540 days past the “Card Expires” date of the current EAD.
Next Steps for Employers
This temporary rule will provide those non-citizens otherwise eligible for the automatic extension an opportunity to maintain employment while avoiding further disruption for U.S. employers. However, employers should ensure that they have established procedures in place for monitoring and reminding employees of EAD expiration dates to ensure ample time for employees to renew their visa or take other action, as applicable, to ensure employment eligibility does not expire.
Employers who use E-Verify and created a case for an employee with an EAD that has been automatically extended for 180 days, may receive a “Work Authorization Documents Expiring” case alert more than 90 days prior to the new expiration date of the employee’s EAD. The early alert may occur because the case was created before DHS published this temporary final rule to increase the employment authorization and/or EAD automatic extension period as outlined above. The alert is a reminder, no action is required in E-Verify and they may dismiss the alert. However, employers are required to update Section 2 of the employee’s Form I-9 to reflect the extension increase provided by the temporary final rule.
It also recommended that employers who have employee on employment visas partner with an immigration attorney for assistance with employee visas and other immigration-related needs.
Employers are encouraged to review the USCIS announcement for more information and refer to Section 4.4 of the M-274 for updated Form I-9 guidance including updating Section 2.
