The U.S. Department of Homeland Security (DHS) announced a final rule that permanently increases the automatic extension period of their Employment Authorization Document (EAD) from up to 180 days to up to 540 days for eligible applicants who timely file their EAD renewal applications.1 The final rule will become effective January 13, 2025.
WHY THIS MATTERS
This rule is crucial for providing stability to employees and their employers. By extending the automatic renewal period, the DHS aims to prevent lapses in employment authorization that can lead to job loss and economic instability for individuals and their families. The change is expected to reduce administrative burdens on employers and enhance the economic contributions of non-citizen employees to the U.S. economy.
Background
The automatic extension of employment authorization was initially set at 180 days under the regulations established in 2016. However, due to unforeseen circumstances, including the COVID-19 pandemic and increased application volumes, this period has proven insufficient. The DHS previously implemented temporary rules in 20222 and 20243, which allowed for a temporary increase to 540 days. The current final rule makes this extension permanent, reflecting the ongoing need for a more robust solution to processing delays and their impacts on employment authorization.
Eligibility
To be eligible for the automatic extension, applicants must have filed a proper Form I-765 renewal application:
- before the expiration of their current EAD;
- in the same category of their current EAD; and
- in a category that is eligible for automatic extension – see below.
The categories (with their corresponding code) that are eligible for an automatic extension are:
- Asylee, Refugees, and Temporary Protected Status (TPS) holders who have:
- been admitted as a Refugee (A03);
- been granted Asylee status (A05);
- been granted withholding of deportation or removal (A10);
- been granted Temporary Protected Status (TPS) if the category on their current EAD is either A12 or C19 (A12);
- pending asylum applications (C08);
- filed suspension of deportation under section 244 of the Immigration and Nationality Act (INA) (as it existed before April 1, 1997), cancellation of removal under section 240A of the INA, or cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (C10);
- pending TPS applications and meet the criteria set forth in sections 244.10(a), 244.10(e), and 274a.12(c)(19) of Title 8 of the Code of Federal Regulations (C19).
- Certain family members:
- Parents and dependent children of those individuals who have been granted permanent residence in the U.S. under section 101(a)(27)(I) of the INA (A07);
- E-1, E-2, and E-3 spouses with an unexpired I-94 that shows the same status (A17);
- L-2 spouses with an unexpired I-94 showing the same status (A18);
- H-4 spouses with an unexpired I-94 showing the same status (C26).
- Certain Adjustment of Status (i.e., Green Card) applicants with a:
- pending application for Adjustment of Status (AOS) under section 245 of the INA (C09);
- pending application for Creation of Records of Lawful Admission for Permanent Residence (C16);
- pending AOS application under section 1104 of the Legal Immigration Family Equity (LIFE) Act (C24).
- Other categories:
- Citizens of the Federated States of Micronesia, the Republic of the Marshall Islands, or the Republic of Palau (A08);
- Legalization applicants pursuant to sections 210 and 245A of 8 U.S.C. 1160 and 8 U.S.C. 1255a, respectively (C20 and C22);
- Self-petitioners under the Violence Against Women Act and their derivative children (C31).
KPMG INSIGHTS
One of the requirements for the 540-day automatic extension of EAD work authorization is an unexpired I-94 for E-3, L-2, or H-4 applicants. Most EADs filed for these cateogries are done concurrently with the I-539 application to extend status. USCIS first adjudicates the I-539 status extension application, and then the EAD filing. If an applicant’s status application is pending beyond his or her I-94’s expiry, the individual may be able to stay in the U.S. on that status, but he or she will not get an automatic work authorization extension because his or her I-94 will have expired. For this reason, the automatic EAD extension does not benefit many of these cases.
KPMG Law LLP in Canada is tracking this matter closely. We will endeavor to keep readers of GMS Flash Alert posted on any important developments as and when they occur.
Footnotes:
1 Federal Register (online), Department of Homeland Security, "Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Employment Authorization Document Renewal Applicants."
2 See GMS Flash Alert 2022-095, May 5, 2022.
3 See GMS Flash Alert 2024-088, April 15, 2024.
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Disclaimer
* Please note the KPMG International member firm in the United States does not provide immigration or labour law services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in Canada.
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