On November 18, 2016, USCIS published a regulation that automatically extended work authorization for 180 days from the date of the EAD expiration for applicants who filed to renew work authorization in the same work authorization category before their expiration date.

The USCIS experienced long processing times and an increased number of EAD applicants during the COVID pandemic. On May 4, 2022, the USCIS temporarily increased the period of automatic extension to 540 days to reduce the number of EAD applicants who would have a break in their authorization to work. The USCIS temporary rule expired on October 26, 2023.

Processing times continue to be long for work authorization, and with other cases. USCIS believes that lengthening the days for the automatic extension is necessary to prevent gaps in employment authorization for EAD renewal applicants. 

To qualify for the automatic extension of work authorization for 540 days, an EAD renewal applicant must:

• File the Form I765 application to renew their EAD before the expiration date of their current EAD;
  
  
• Apply for renewal in the same work authorization category on which their current EAD is based; and
  
  
• The work authorization category must be listed under the rule.

The work authorization categories that qualify for the 540 day automatic extension includes:

• Adjustment of status applicants (C09);
  
  
• Refugees and asylees (A3 and A5);
  
  
• Asylum applicants and applicants for withholding of removal (C08);
  
  
• Approved self-petitioners under the Violence Against Women Act (VAWA) and their qualified children (A31);
  
  
• H4 spouses with an unexpired Form I94 in H4 visa status (C26);
  
  
• E1, E2, and E3 spouses with an unexpired Form I94 in E visa status (A17);
  
  
• Temporary Protected Status ("TPS") (A12 or C19); and,
  
  
• L-2 spouses with an unexpired L-2 I-94 (A18), noting however, that such individuals are not required to apply for an EAD, as they are employment-authorized incident to their valid L-2S status.

It should be noted that spouses of E1, E2, E3, and L1 visa holders are authorized for employment based on their status. See USCIS Policy Manual. These individuals are not required to apply for an EAD to be able to continue working legally in the United States.

Foreign students with an F1 visa status and STEM OPT are not eligible for the temporary 540-day maximum automatic extension. Their automatic extension period will continue to be 180 days. Applicants for renewal of STEM OPT EAD can request premium processing of their applications for a fee of $1,685.

The automatic extension of work authorization stops if the USCIS denies the EAD renewal application. 

Employers may document this automatic extension of work authorization on an employee's Form I9. Applicants can prove their eligibility for the new 540-day automatic extension with a qualifying EAD card and the receipt notice for the Form I765. Both of these documents must show the same qualifying work authorization category. If the applicant is applying for work authorization under Temporary Protected Status, the current EAD and receipt notice can display either A12 (TPS granted) or C19 (TPS applicant) as the work authorization codes on either document. The person would qualify for the automatic extension even if the codes do not match.

Receipt notices issued on or after April 8, 2024 will state that work authorization is automatically extended for up to 540 days. The USCIS will not issue new receipt notices for Form I765 renewal applications that were filed after October 27, 2023 but are still pending. However, these receipt notices can be used to demonstrate eligibility for the 540 day extension. USCIS plans to update its website with clarifying guidance on the new auto-extension.

Employers updating or completing a Form I9 may attach a copy of the USCIS guidance on the agency's website to the employee's Form I9 to document the extension of work authorization. HR Managers should update staff members responsible for Form I9 compliance about this new automatic extension of work authorization.