DHS: Automatic Extension Of Work Authorization For Certain Renewal Applicants – General Immigration

Good news for those applying for or with pending Employment
Authorization Document (EAD) renewals. DHS is temporarily reinstituting its 540-day
automatic extension of work authorization for eligible
individuals.

Although DHS has streamlined its EAD process and extended EAD
validity periods for certain applicants from two years to five
years, the government still struggles to timely process EAD
applications that has resulted in processing times that are still
too long. Up to 800,000 employees were in danger of employment gaps. Accordingly, DHS
resumed the 540-day automatic extension for qualifying petitions
that were filed on or after Oct. 27, 2023.

USCIS is considering making the new 540-day rule permanent and
is accepting comments on the topic until June 7, 2024.

Applicants eligible for the new 540-day automatic extension:

• Must have timely applied to renew their EADs on or after Oct.
  27, 2023 (and the application is still pending as of April 8, 2024)
  or on or before Sept. 30, 2025, the new end date for the automatic
  540-day extension.




• Must be applying for an EAD in the same category as their
  current EAD (except for Temporary Protected Status (TPS), which can
  be A12 or C19).




• The eligible categories include, among others, individuals
  whose EADs are based on Adjustment of Status applications, asylees,
  refugees, certain individuals in TPS status and individuals in H-4,
  E, and L-2 dependent status, asylees, and refugees. The full list
  is available on the USCIS website.




• Those in H-4, E, and L-2 dependent status must also have a
  valid I-94, Arrival/Departure Record.

Proof of 540-day Automatic Extension for Form I-9

Those who filed for renewal on or after May 4, 2022, and
before Oct. 27, 2023,should have a receipt that references the
540-day extension.

Those who file for renewal on or after April 8, 2024,
should receive a receipt notice explaining the 540-day rule.

Those who filed for EAD renewal after Oct. 27, 2023, and
before April 8, 2024, may present their receipt notice with
their facially expired EAD. USCIS will not issue updated notices
for these applicants, but it will update the webpage referenced in
the receipt notice to reflect the change from the 180-day rule to
the 540-day rule.

The government continues to make compliance with I-9 employment
eligibility verification difficult. There are hundreds of pages of
government resources explaining I-9 employment eligibility, from
the I-9 instructions themselves to the M-274 Handbook and USCIS I-9
Central. The rapidity of policy changes requires constant vigilance
because, if employers deny employment to a work-authorized
individual, the Department of Justice’s Immigrant and Employee
Rights Division is ready to investigate and potentially fine
infractions. The resulting tightrope employers walk is complex and
unfair, as each year compliance becomes more difficult. There is no
end in sight.

Jackson Lewis attorneys are available to provide guidance on
completing Form
I-9 for those on automatic extensions as well as on proof of
employment authorization for hiring, rehiring, and
reverification.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.