The provision automatically extending some Employment Authorization Documents (“EADs”) of the much-anticipated “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimigrant Workers” regulation goes into effect today. The regulation provides for the automatic extension of certain EADs for a period not to exceed 180 days, provided that a renewal application is:

  1. Properly filed with USCIS before the expiration date shown on the face of the expiring EAD,
  2. Based on the same employment category shown on the face of the expiring EAD, and
  3. Based on a class of aliens whose employment eligibility to apply for employment authorization continues notwithstanding expiration of the EAD and is based on an employment authorization category that does not require adjudication of an underlying application or petition before the adjudication of the renewal application.

While the automatic extension provision is a welcome relief to many foreign nationals who depend on EADs for documentation of employment eligibility, the new regulation carves out this benefit only to the following fifteen employment authorization categories:

  1. Aliens admitted as refugees (274a.12(a)(3))
  2. Aliens granted asylum (274a.12(a)(3))
  3. Aliens admitted as parents or dependent children of aliens granted permanent residence under section 101(a)(27)(I) of the INA (274a.12(a)(7))
  4. Aliens admitted to the United States as citizens of the Federated States of Micronesia, the Marshall Islands, or Palau under agreements between the United States and those nations (274a.12(a)(8))
  5. Aliens granted withholding of deportation or removal (274a.12(a)(10))
  6. Aliens granted Temporary Protected Status (TPS) (regardless of the employment authorization category on their current EADs) (274a.12(a)(12) and (c)(19))
  7. Aliens who have properly filed applications for TPS and who have been deemed prima facie eligible for TPS under 8 CFR 244.10(a) and have received an EAD as a “temporary treatment benefit” under 8 CFR 244.10(e) and 274a.12(c)(19)
  8. Aliens who have properly filed applications for asylum or withholding of deportation or removal (274a.12(c)(8))
  9. Aliens who have filed applications for adjustment of status under section 245 of the INA, 8 U.S.C. 1255 (274a.12(c)(9))
  10. Aliens who have filed applications for suspension of deportation under section 244 of the INA (as it existed prior to April 1, 1997), cancellation of removal under section 240A of the INA, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (274a.12(c)(10))
  11. Aliens who have filed applications for creation of record of lawful admission for permanent residence (274a.12(c)(16))
  12. Aliens who have properly filed legalization applications pursuant to section 210 of the INA, 8 U.S.C. 1160 (274a.12(c)(20))
  13. Aliens who have properly filed legalization applications pursuant to section 245A of the INA, 8 U.S.C. 1255a (274a.12(c)(22))
  14. Aliens who have filed applications for adjustment of status pursuant to section 1104 of the LIFE Act (274a.12(c)(24))
  15. Aliens who are the principal beneficiaries or qualified children of approved VAWA self-petitioners, under the employment authorization category “(c)(31)”

Pursuant to the regulation, applicants eligible for the 180 automatic extension will receive, upon filing a renewal application, an I-797 receipt notice stating that the original EAD has been automatically extended for 180 days.

Of special interest to many U.S. employers is that the automatic extension provision applies to employees who have filed adjustment of status applications based on an offer of employment by a U.S. employer, but does not apply to foreign nationals who are employed pursuant to F-1 EADs or to spouses of foreign nationals in H-1B, L-1, E-1/E-2 or E-3 nonimmigrant status.

While the regulation provides a significant benefit to the foreign nationals who meet the criteria listed above, the regulation also eliminates the prior regulatory requirement that USCIS process EAD applications within 90 days. Because renewal applications cannot be filed earlier than 120 days prior to the expiration date listed on the face of the expiring EAD, this requirement was crucial in ensuring that EAD applications were processed in a timely manner and without interrupting employment eligibility.

As a result, USCIS announced that it will start accepting renewal applications up to 180 days prior to the expiration date listed on the face of the expiring EAD, but has not announced when this change will become effective.

Despite the new regulation, we continue to advise our clients to renew EAD applications as early as possible within the 120-day period prior to the expiration of current EADs or as early as possible within the 180-day period as soon as the change in filing procedure is announced.

Our attorneys will continue to monitor developments as they relate to the implementation of this new regulation and will post updates as soon as they become available. If you have questions regarding EAD renewals or other immigration matters, please contact one of our attorneys: Ian P. Band, Adam J. Rosser, Suzan Kern, or Liya Green.

To review the new regulation, see Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.