The USCIS has issued a temporary final rule that allows for a 540 day automatic extension for some EAD renewal applications. This is a significant increase from the previous rule that allowed for a 180 day extension. This rule goes into effect immediately and affects the EAD categories mentioned below. In the realm of employment-based immigration, this is good news for spouses of E-2, L-1, and H-1B holders with pending I-765 renewals as well as green card applicants with pending I-485 applications. These categories are highlighted in the table below.
How does the new rule work?
In order to access the automatic extension, the applicant must have a timely filed extension. The previous extension of 180 days is still in effect and will be added to an additional 360 days, for a total automatic extension of 540 days from the date the EAD expires. Applicants will need to present their most recent EAD and I-765 receipt notice to their employers to qualify for the extension.
What if my EAD has already expired?
I-765 renewal applicants whose 180-day extension has already lapsed and whose EAD has expired qualify for an additional automatic renewal period of up to 360 days from the EAD’s expiration date. They may take their I-765 receipt notice and current EAD to their employer immediately to request reinstatement and show proof of employment authorization.
What if I am already utilizing the 180 automatic extension?
I-765 renewal applicants who are currently within the 180 day automatic extension may utilize the 360 day automatic extension so as to benefit from the full 540 day automatic extension.
What if my I-765 is denied before the 540 day period ends?
The automatic extension will end if the I-765 is denied.
How long will the temporary rule be in effect?
I-765s files on or after October 27, 2023 will revert back to the 180 day automatic extension for timely filed renewal applications. USCIS anticipates having worked through the backlogged I-765 applications by that time.
The following categories are eligible for a 540 day extension under new temporary rule:
|(a)(7)||N-8 or N-9|
|(a)(8)||Citizen of Micronesia, Marshall Islands, or Palau|
|(a)(10)||Withholding of Deportation or Removal Granted|
|(a)(12)||Temporary Protected Status (TPS) Granted|
|(a)(17)||Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status*|
|(a)(18)||Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status*|
|(c)(8)||Asylum Application Pending|
|(c)(9)||Pending Adjustment of Status under Section 245 of the Act|
|(c)(10)||Suspension of Deportation Applicants (filed before April 1, 1997)
Cancellation of Removal Applicants
Special Rule Cancellation of Removal Applicants Under NACARA