New Rules Establish Automatic Employment Authorization based on Pending EAD Renewal Application

As part of a set of rule changes, collectively called “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” (see our full analysis) and effective as of January 17, 2017, USCIS has made some significant and welcome changes to the way it treats work authorization document (EAD) renewals and allows for automatic work authorization based on a pending EAD renewal application in certain cases.

Update:  a temporary 540-day extension term is in place from May 2020 to October 2023.

The New Rule: Automatic Employment Authorization Based on Pending EAD Renewal Application

The new rule provides for an automatic authorization to work based on a timely-filed and pending EAD renewal application in the same EAD eligibility category.    This automatic work authorization period is intended to be for up to 180 days past the underlying EAD expiration date and for as long as the renewal EAD application is pending (and not denied; a pending request for evidence, or RFE, generally means that the application remains in a “pending” state).

The text of the relevant provision says,

(1) Automatic extension of Employment Authorization Documents. Except as otherwise provided in this chapter or by law, notwithstanding 8 CFR 274a.14(a)(1)(i), the validity period of an expiring Employment Authorization Document (Form I-766) and, for aliens who are not employment authorized incident to status, also the attendant employment authorization, will be automatically extended for an additional period not to exceed 180 days from the date of such document’s and such employment authorization’s expiration if a request for renewal on a form designated by USCIS is:

(i) Properly filed as provided by form instructions before the expiration date shown on the face of the Employment Authorization Document, or during the filing period described in the applicable Federal Register notice regarding procedures for obtaining Temporary Protected Status-related EADs;

(ii) Based on the same employment authorization category as shown on the face of the expiring Employment Authorization Document or is for an individual approved for Temporary Protected Status whose EAD was issued pursuant to 8 CFR 274a.12(c)(19); and

(iii) Based on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before adjudication of the renewal application, including aliens described in 8 CFR 274a.12(a)(12) granted Temporary Protected Status and pending applicants for Temporary Protected Status who are issued an EAD under 8 CFR 274a.12(c)(19), as may be announced on the USCIS Web site.

8 CFR 274a.13(d).

What was the Prior USCIS Rule?

Previously, an expired EAD did not permit employment until and unless the renewal EAD application was approved.   In cases where the underlying EAD document expired but the renewal EAD application was still pending the employment was not authorized and we have seen first-hand the challenges this previous rule posed to employers and to employees who had to stop employment for considerable period of time.

The previous rule caused a lot of anxiety for EAD renewal applicants, especially given the fact that USCIS did not always meet its commitment to adjudicate EAD applications within 90 days.    Many EAD holders also did not file renewal applications early enough (USCIS used to allow renewal EADs to be filed not more than 120 days prior to expiration — this has changed now to 180 days, as discussed below).

The New Rule Grants Automatic Employment Authorization Based on Timely-Filed EAD Extension

The new rule grants an automatic employment authorization for up to 180 days in cases where a timely-filed EAD renewal is pending.   This rule has some specific caveats and restrictions – and not all types of EAD are covered by the rule.

Timely EAD Renewal Filing

The rule specifically states that the automatic employment authorization is granted only when the EAD renewal is filed timely which means that the EAD renewal is filed with USCIS prior to the expiration of the previous EAD card without any gap.    There is no automatic work authorization grant if a renewal EAD is filed after the previous EAD has expired.

180-day Maximum

The automatic work authorization would last until the earlier of 180 days have passed from the expiration of the previous EAD card or the renewal EAD application is denied.    It should be noted that if the government requests additional evidence (“RFE”) then the application is normally considered pending.

Only EAD Renewals Based on the Same EAD Category

The EAD renewal must be based on the same work authorization document category as the previous EAD.

Only EAD Categories Which Do Not Require Adjudication of Underlying Status Are Eligible

Possibly the most common category is (c)(9) which is  EAD based on a pending I-485 Adjustment of Status application.   The included EAD categories are:  refugees – (a)(3), asylees – (a)(5), parents or dependent children of people who got permanent residency under INA 101(a)(27)(I) – (a)(7), citizens of Micronesia or the Marshall Islands – (a)(8), applicants granted withholding of deportation or removal – (a)(10), TPS (a)(12) and (c)(19), applicants with pending asylum or withholding of deportation or removal – (c)(8), pending adjustment of status applicants – (c)(9), applicants with pending suspension of deportation and cancellation of removal – (c)(10), applicants for creation of a record of lawful admission for permanent residence – (c)(16), legalization applicants – (c)(20) and (c)(22), LIFE Act adjustment applicants – (c)(24), VAWA cases – (c)(31).   See also USCIS website.

Unfortunately, the automatic work authorization based on pending EAD renewal does not apply to all types of EADs.   The rule specifically limits the applicability of the rule to categories which do not require the “adjudication of an underlying application or petition before adjudication of the renewal application.”    In plain English, this excludes EAD applications which require or are based on a separate application for status.    Common EAD types which are excluded from the new rule are H-4 EAD and L-2 EAD which are not granted automatic employment authorization based on pending renewal.     They are excluded from the rule because they require the adjudication of the underlying benefit (the H-4 or L-2 status).

90-Day EAD Adjudication Rule Dropped/EAD Renewals Can be Filed Earlier

As part of this automatic work authorization grant, USCIS is changing some related provisions.   First, they are removing the provision which required adjudication of EAD applications within 90 days.   While USCIS have indicated that they will try to maintain this level of service and produce EADs within 90 days, this is no longer required by the regulations.    It is possible that processing times for EAD will increase beyond 90 days.

Additionally, USCIS is now allowing EAD renewals to be filed earlier – up to 180 days (it was 120 days) prior to the expiration of the current EAD document.   Even with this earlier EAD renewal eligibility, the issue often is EAD holders forgetting to file their EAD renewals until it is too late.   For certain holders, specifically H-4 EAD and L-2 EAD, it continues to be very important to file renewals as early as possible and ideally 180 days prior to EAD expiration.

Conclusion

We welcome DHS’s publication of the final rule and the grant of employment authorization based on pending EAD renewals for certain applicants.    Earlier EAD renewal filing is also very helpful.   However, the removal of the 90-day EAD adjudication requirement continues to mean that some EAD holders (H-4 and L-2, among others) will need to plan carefully and apply very early for their renewals to avoid gaps in EAD validity and employment authorization.

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