The Department of Homeland Security (DHS) announced a new rule which permits certain noncitizen applicants to continue working without disruption while their requests for employment authorization are pending adjudication. Qualified individuals must have a pending Form I-765 (Application for Employment Authorization) and meet other criteria (timely filed, same employment category, received a Form I-797C notice) to continue working for up to 540 days from the expiration date stated on their Employment Authorization Documents (EADs or Forms I-766).

What is an EAD?

An Employment Authorization Document (EAD) also known as a work permit may serve as evidence that a noncitizen is authorized to work in the United States for Form I-9 (Employment Eligibility Verification) purposes. An EAD may also be used to obtain certain benefits such as a state issued driver’s license.

Who benefits from the new rule?

The rule does not benefit those filing new work authorization requests. The provision is limited to qualified individuals renewing their Form I-765 (Application for Employment Authorization) including those whose work authorization lapsed.

For applicants meeting the criteria, work authorization automatically resumes from May 4, 2022, for any time remaining within the 540-day automatic extension period.

The agency only designated certain categories to be eligible, including individual asylum seekers and pending adjustment of status applicants. H-4, E, and L-2 dependent spouses are also eligible but may not necessarily receive the full extension. An individual’s automatic extension period may terminate prior to the maximum period (either 540 or 180 days) either automatically when USCIS issues a denial of the applicant’s Form I-765 renewal application or upon notice.

What evidence will be provided?

Why did DHS make this change?

According to agency, there are 1.5 million pending requests for work authorization. Processing times have increased significantly over the past few years as a result of the pandemic-related impact on operations and revenue, resource and financial constraints imposed upon the agency, and an increase in applications. The agency recognizes that processing delays result in noncitizens losing their jobs and income, and employers being faced with finding replacements when the U.S. economy is experiencing more job openings than available workers. According to DHS, approximately 87,000 applicants are, or soon will be, past the 180-day automatic extension period. Further, DHS estimates that approximately 14,500 or more renewal applicants, the majority of whom are individuals seeking asylum, will lose their work authorization each month unless action is taken to address the situation.

Completing the Form I-9 (Employment Eligibility Verification)

DHS has updated its website and the M-274, Handbook for Employers to provide specific guidance for employers completing the Form I-9, and a brief summary is provided below:

As a best practice, employers should attach DHS’ webpage describing the temporary EAD extension of up to 540 days to the employee’s Form I-9 when an employee presents a Form I-797C referring to an extension of 180 days.

Public Comments

The public may submit comments and provide feedback on the new rule through the Federal Register notice until July 5, 2022.