U.S. employers and qualified foreign nationals should take advantage of USCIS’ recent move to increase the automatic extension period for foreign nationals waiting on employment authorization renewals. This automatic extension would make a large number of foreign nationals eligible for employment by providing up to 540 days of employment authorization. It will also help U.S. employers and their impacted employees avoid gaps in employment caused by processing backlogs.

The 540-day extension confers employment eligibility to qualified foreign nationals who worked pursuant to employment authorization documents and were eligible for an automatic 180-day extension, but who had not yet received authorization beyond that time due to processing delays. Those foreign nationals will receive up to 360 days of added work authorization (for a total of up to 540 days) if they have a timely-filed Form I-765 renewal application pending between May 4, 2022, and October 26, 2023. Beginning Oct. 27, 2023, automatic extensions of employment authorization and Employment Authorization Documents (EAD) validity periods will revert to the 180-day limit for those eligible applicants who timely file Form I-765 renewal applications.

Employers should understand that the 540-day automatic extension period applies to the following classes of foreign nationals:

    1. Foreign nationals who now have a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired will be granted an added period of employment authorization and EAD validity. It will begin May 4, 2022, and last up to 540 days from the expiration date of their EAD. They may resume employment if they are still within the up to 540-day automatic extension period and are otherwise eligible.
    2. Noncitizens with a pending renewal application still covered under the 180-day automatic extension will be granted an added up to 360-day extension, for a total of up to 540 days past the expiration of the current EAD.
    3. Noncitizens with a pending renewal application and valid EAD on May 4, 2022, or who timely file an EAD renewal application before Oct. 27, 2023, will be granted an automatic extension of up to 540 days if their EAD expires before the renewal application is processed.

This means that certain foreign national employees who lost employment eligibility while waiting for employment authorization renewal are again eligible. Employers onboarding these candidates may satisfy I-9 employment eligibility requirements by completing the Form I-9 as follows:

    1. When hiring new employees who have recently regained employment eligibility, the employee should use the extended expiration date to complete Section 1 (if applicable). When employers complete Section 2 of the Form I-9, they should list the date that the automatic extension period expires.
    2. When reverifying employment eligibility for current employees who are waiting for extension approval, the employer should update the previously completed Form I-9 to reflect the extended expiration date based on the automatic EAD extension while the renewal is pending. The employer should reverify no later than the date that the automatic extension expires.
    3. When rehiring employees whose employment eligibility lapsed, for renewal applicants with pending Forms I-765 who experienced a lapse in employment authorization or EAD validity before May 4, 2022, yet resume a period of employment authorization with the same employer and EAD validity extended under the new rule, the employer may complete Form I-9 by treating the individual's employment authorization as having previously expired. The employer can either reverify employment authorization on the employee's Form I-9 or complete a new Form I-9.