On January 17, 2017, USCIS’s new rules regarding the 180-day automatic extension of employment authorization while an Employment Authorization Document (EAD) renewal is pending went into effect. Under the new rule, the expired EAD’s validity period will be automatically extended for 180 days as long as:
- The Form I-765/EAD renewal is timely filed;
- The application is for a renewal of EAD in the same category as the original EAD; and
- The applicant is in a qualifying category.
Let’s a take a closer look at some of the most important features of the new rule:
Question 1: What does the new rule actually do?
Answer 1: Under the new rule, foreign nationals who are filing an USCIS EAD renewal application (Form I-765) in certain categories will get a 180-day extension of their work authorization. The automatic EAD extension will start on the day after the EAD expires and expire on the 180th day, unless the application is denied.
For example- Anne’s EAD is expiring on February 1, 2017. She files the Form I-765 to renew her EAD on January 30, 2017. Anne’s EAD will be automatically extended for 180 days until July 31, 2017. If the EAD renewal is denied on April 1, 2017, Anne’s employment authorization will end on April 1, 2017.
Question 2: Is eligibility for the EAD renewal only for applications filed on or after January 17, 2017?
Answer 2: No. Applicants who filed an EAD renewal before January 17, 2017 are eligible for the automatic extension as long as they qualify and meet all the requirements.
For example- John had filed his EAD renewal application on December 15, 2016. John’s employment authorization is now considered extended as long his application is pending.
Question 3: What does “timely filed” mean?
Answer 3: “Timely filed” means USCIS has received Form I-765 before the EAD expires.
For example- Maria’s EAD expires on March 1, 2017. She sends the EAD application to USCIS on February 26, 2017 but sends it by regular, First Class mail. The application does not reach USCIS until March 3, 2017. Because the application for renewal did not reach USCIS before March 1, 2017, when her EAD expired, Maria’s EAD is not extended. She is not authorized to continue working past the expiration date of her EAD. She must stop working and cannot begin working again until her EAD is approved.
Question 4: Are there any exceptions to the “same category” requirement?
Answer 4: There is only one exception to the requirement that the renewal must be in the same eligibility category as the original EAD. Employees with TPS can have A12 or C19 on the EAD and/or renewal application and still qualify.
Question 5: Which EAD holders qualify for the automatic extension under the new rule?
Answer 5: As of today, the following is a list of the eligible category codes for the 180-day automatic EAD extension:
Note: If the EAD has a P after the category code (“C09P”), the P can be disregarded when checking for eligibility for the extension
- A03 or (a)(3)- Refugees
- A05 or (a)(5)- Those granted asylum
- A07 or (a)(7)- Parent or dependent child of a permanent resident (N-8 or N-9)
- A08 or (a)(8)- Citizen of Micronesia, Marshall Islands, or Palau
- A10 or (a)(10)- Those granted Withholding of Removal
- C08 or (c)(8)- Those with pending asylum applications
- C09 or (c)(9)- Those with a pending Adjustment of Status application
- C10 or (c)(10)- Those who have applied for Suspension of Deportation
- C16 or (c)(16)- Those who have filed Adjustment of Status based on continuous residence since January 1, 1972
- C20 or (c)(20)- completed legalization application filed
- C22 or (c)(22)- completed legalization, with authorization granted in 1 year increments
- C24 or (c)(24)- LIFE legalization applicant
- C31 or (c)(31)- VAWA self-petitioner
- A12 or (a)(12)/C19 or (c)(19)- TPS related categories
Question 6: Which EAD eligibility categories ARE NOT included in the new rule?
Answer 6: Of the several eligibility categories that are not eligible for 180-day automatic extension, the most notable are:
What this means is that nonimmigrant spouses who hold L-2, H-4 or E-1/E-2/E-3 dependent status and have EAD’s will NOT have their employment authorization extended under the new rule.
- A18 or (a)(18)- L-2 spouse
- A17 or (a)(17)- E-1/E-2/E-3 dependent spouse
- C26 or (c)(26)- H-4 Spouse
Question 7: What constitutes valid proof of extension of employment authorization?
Answer 7: The I-797C Notice of Action (receipt notice) for a timely filed Form I-765 along with the expired EAD constitutes valid proof of employment authorization and can be presented for I-9 verification for continuing or new employment.