Immigration Increases Automatic Extension Period for Work Permits

The United States Citizenship and Immigration Services (USCIS) announced an immediate-effectively extension period for work permits for some visa applicants. The Temporary Final Rule (TFR) increases the automatic extension period of expiring employment authorization documents (EADs). The extension for some renewal applications has been increased from 180 days to 540 days. The rule went into place immediately, becoming effective May 4, 2022.

The increase was seen as a necessary step to minimize the risk of gaps in employment for immigrants who are waiting for EAD renewal applications. The USCIS cited the action was necessary to stabilize the continuity of operations for employers in the U.S.

A statement issued by USCIS Director Ur M. Jaddou stated, “As USCIS works to address pending EAD caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient.” He then continued, “The temporary rule will provide those noncitizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families while avoiding further disruption for U.S. Employers."

Qualified Applications for the Automatic Extension

There are three specific groups of applicants in EAD categories that may fall under the TFR. These are individuals who would have previously had a 180-day automatic extension for employment.

The three groups include:

Renewal applications through Form I-765

For those who have a Form I-765 application that continues to be in a pending status as of May 4, 2022, this rule typically applies. It is necessary that the EAD has not yet expired. It applies to those who have an EAD whose current 180-day auto-extension period has not yet been lapsed.

Renewal applications with pending EAD Renewal

Those who have a renewal application that is currently pending EAD renewal and who have a 180-day automatic extension that has lapsed may qualify. This includes those whose EAD has expired. In these situations, the TFR will grant an additional period of employment authorization. The EAD will be valid starting on May 4, 2022. In this category of individuals, the new authorization will last up to 540 days from the original expiration date of their EAD.

New renewal applicants

It is also possible for those who have new renewal applications that typically find form I-765 may qualify. This is applicable during the 18-month period that follows the TRF’s publication. This is aimed at helping to avoid gaps in future employment due to employment authorization or documentation.

Categories of Qualified Individuals

The automatic EAD extension applies to numerous classifications of employees. View the full list of them at the USCIS website. Among those who may qualify are individuals who fall into numerous categories, including:

· A3 and A5 refugees and asylees

· H-1B principal non-immigrants and spouses with an I-94 that is not expired with H-04 non-immigrant status

· Others may qualify based on the link above

Why Is the Rule Necessary?

The TFR was necessary due to the strain on the USCIS. The organization stated that it has been in a precarious financial situation for some time. It noted that the COVID-19 pandemic exacerbated the challenges it was already having in meeting demand in an efficient manner. These challenges have led to the agency being unable to efficiently complete its caseload.

The organization also faced a hiring freeze that made it impossible for the organization to take on new employees to meet increasing demand. Rather, the furlough threat it faced instead led to workforce attrition. Overall, the organization’s capacity to process ever-increasing applications was reduced severely.

After pulling out of the pandemic and the hiring freeze that was in place, the USCIS then faced an onslaught of new applications. The sudden and dramatic increase in both initial and renewal filings has made it hard for the organization to get back on track with its caseload. The organization stated in its press release about the extension that it continues to struggle with fiscal and operational impacts resulting from each of these situations.

How the TFR Offers a Solution

The TFR is only applicable to certain EAD categories. Those who do qualify under those listed categories are already eligible for an up to 180-day extension. For those individuals, the TFR will temporarily provide up to 360 days of additional automatic extension time. This is a total of 540 days of extension opportunity for those who are eligible. To qualify, eligible applicants will need to timely file their Form I-765 renewal application. It needs to be pending during that initial 18-month period after the publication of the TRF.

The extension may be cumbersome for some applicants, but it is designed to provide USCIS the time it needs to address its current staffing issues and to implement new changes that will aid in efficiencies, with the goal of no longer facing these types of limitations and renewal backloads in cases in the future.

3 Month Backload Goal

On March 29, 2022, Director Jaddou issued a press release indicating that substantial changes would be put in place to aid the agency, including in addressing its current backlog of cases. He noted that the goal is to achieve a three-month cycle time for all EAD applications during that statement. This would make the process comparable to the median three-month processing time that has been in place. The goal is for the organization to reach this goal in speedy renewals by the end of the fiscal year 2023.

The agency also noted that by October 27, 2023, all automatic extensions for employment authorization and EAD validity will go back to the 180-day period for eligible applicants. Individuals must file applications in a timely manner to qualify for this benefit.

Addressing Noncitizens with Lapsed Applications

Some non-citizens are already facing a lapse in their approval for their extension. The USCIS stated that noncitizens that have a pending EAD renewal application that has lapsed and whose EAD has expired will receive additional time to allow for validity and employment authorization. This can last up to 540 days for those who qualify.

As such, for those who have a lapsed application that fits this requirement, these individuals can resume employment as long as they are still within the 540-day window for automatic extensions. These individuals should be otherwise eligible for renewal as well.

After the Extension Period

The USCIS aims to have all pending applications cleared within that timeframe, allowing for the agency to move to a three-month projected approval window for applicants beginning in October of 2023.

The automatic extension generally will end when a final decision is made for each person or at the end of the 540-day period for the applicant, which is 540 days after the expiration date on the current EAD.

Though unexpected, changes to these timelines may occur at some point in the future. Individuals must keep up to date with information related to these updates using the USCIS website.

How to Get Help

For any noncitizen in the U.S., it is possible to file Form I-765, Application for Employment Authorization, with the agency. This allows for a person to request employment authorization and an EAD. This is applicable as well to individuals who have an immigration status that allows them to work in the U.S. without restrictions.

Patricia Elizee is an immigration and family law attorney. She is the managing partner of the Elizee Law Firm. 1110 Brickell Avenue, Suite 315, Miami, Florida 33131. Ph: 305-371-8846.