4.4 Automatic Extensions of Employment Authorization and/or Employment Authorization Documents (EADs) in Certain Circumstances

On May 4, 2022, DHS published a temporary final rule (87 FR 26614) in the Federal Register to temporarily increase the employment authorization and/or Employment Authorization Document (EAD) automatic extension for applicants within certain employment eligible categories who have a pending Form I-765, Application for Employment Authorization, requesting a renewal of their employment authorization and/or EAD. This rule increases the automatic extension period from up to 180 days to up to 540 days. The automatic extension of up to 540 days applies to qualifying renewal applicants whose Forms I-797C, Notices of Action, have a “Received Date” of Oct. 26, 2023, and earlier.

More specifically, the temporary rule applies to individuals with a pending Form I-765 renewal application and employment authorization and/or an EAD who are eligible for the original 180-day automatic extension, and:

• The automatic extension lapsed prior to May 4, 2022. Such individuals will receive an automatic resumption of their employment authorization and/or EAD validity for an additional period beginning from May 4, 2022, and up to 540 days from the expiration of their employment authorization or the “Card Expires” date on their current EAD.
• The “Card Expires” date on the EAD has passed but they are still covered under the automatic extension of up to 180 days. They now have an additional extension of up to 360 days, for a total of up to 540 days past the expiration of their employment authorization and/or “Card Expires” date stated on their current EAD.
• Employment authorization and/or the EAD’s expiration date has not passed and their Form I-765 renewal applications remain pending. Such individuals will receive an automatic extension of employment authorization and/or EAD validity of up to 540 days if their employment authorization and/or the “Card Expires” date on their current EAD expires before the Form I-765 renewal application is adjudicated.
• The EAD renewal application is filed while the temporary automatic extension increase is applicable, which is during the 18-month period beginning on May 4, 2022 when the final rule went into effect and ending on Oct. 26, 2023. Such employment authorization and/or EADs are automatically extended for up to 540 days if employment authorization and/or the “Card Expires” date on the EAD expires before the Form I-765 renewal application is adjudicated.

The criteria for receiving this increased automatic extension have not changed from the criteria applicable for an extension of up to 180 days. Qualifying individuals must:

• Have timely filed an application to renew their employment authorization and/or EAD on Form I-765, Application for Employment Authorization, before the EAD expires (except certain employees with Temporary Protected Status (TPS), and the Form I-765 EAD renewal application remains pending.
• Have been issued a Form I-797C, Notice of Action, issued for the corresponding Form I-765 EAD renewal application, that states an eligibility category that is the same as the eligibility category stated on the front of the EAD except:
  • In the case of an EAD and I-797C, Notice of Action, each may contain either an A12 or C19 TPS category code; the category codes do not have to match.
  • For H-4 (C26), E (A17) and L-2 (A18) dependent spouses, whose Form I-797C must be accompanied by an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status.
• Be within one of these eligibility categories that qualify for the automatic extension: A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19. The eligible categories are published on the USCIS Automatic EAD Extension page. Some category codes on the EAD may include the letter ‘P’ such as C09P. Employers should disregard the letter ‘P’ when comparing the category code on the EAD with the category code on the Form I-797C, Notice of Action. *Only certain employees who file a Form I-765 renewal application within categories A17, A18, and C26 are eligible for an automatic extension. See A17, A18, and C26 guidance below.

Employees who present employers with a Form I-797C, Notice of Action, referring to an automatic EAD extension of up to 180 days are eligible for the extension of up to 540 days when the above eligibility requirements are met.

Forms I-797C, Notice of Action, issued May 4, 2022 through Oct. 26, 2023 will refer to an automatic EAD extension of up to 540 days. The temporary automatic extension increase will no longer apply to employment authorization and/or EADs associated with Form I-765 renewal applications filed after Oct. 26, 2023 and USCIS will return to issuing Forms I-797C, Notice of Action, for Form I-765 renewal applications that contain notice of automatic extensions of up to 180 days.

Updating Form I-9 for an Employee with An Existing 180-Day Automatic Extension

If your current employee’s Form I-9 as of May 4, 2022 shows an EAD that was automatically extended by 180 days, the employee is eligible to receive an additional extension of 360 days as provided in the temporary final rule (87 FR 26614), for a total of 540 days counted from the “Card Expires” date stated on the face of the EAD. Employees whose EAD Category Codes are A17, A18 and C26 may not necessarily receive the full 360-day extension, and this is explained below in the For Category Codes A17, A18, and C26 guidance.   

You must update the employee’s Form I-9 no later than the date the employee’s 180-day automatic extension ends. If you retain copies of your employees’ documents, you may use those copies to determine the employee’s eligibility and/or accurately calculate the increased automatic extension. Employers are not required to re-examine documents. However, your employee may present their Form I-797C, Notice of Action, EAD and, if applicable, Form I-94 again if you need to re-examine the “Card Expires” date and the category code(s) to determine eligibility and/or accurately calculate the increased automatic extension. Your employee’s Form I-797C, Notice of Action, may refer to an automatic EAD extension of up to 180 days but is now acceptable evidence of the extension of up to 540 days, provided the above-described eligibility requirements are satisfied.

Based on your employee’s Form I-9 documentation history, their EAD 180-day automatic extension date may be located in the Document Expiration Date field or Additional Information field in Section 2. Add 360 days to this date and enter the new EAD expiration date in the Section 2 Additional Information field. You may also determine the automatic extension date by adding 540 days to the “Card Expires” date shown on the EAD.

Employers may keep a copy of the USCIS webpage describing the temporary EAD extension of up to 540 days with the employee’s Form I-9.

You may use the Employment Authorization Document (EAD) Automatic Extension Calculator to determine extended expiration dates.

For Category Codes A17, A18, and C26

This guidance applies to employees who fall within category codes A17, A18, or C26 and therefore are either an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes on Form I-94. Your employee’s automatic extension period cannot exceed the Form I-94 end date. Under this circumstance, it may be true for your employee that the extension may be greater than 180 days but less than the additional 360 days. Your employee’s Form I-797C, Notice of Action, may refer to an automatic EAD extension of up to 180 days but is now acceptable evidence of the extension of up to 540 days, but not to exceed the Form I-94 end date, and the above-described eligibility requirements are satisfied. In the Additional Information field of Section 2, enter either the Form I-94 end date or the EAD “Card Expires” date plus up to 360 days, whichever date is earlier.

Resumption of Employment Authorization

Beginning May 4, 2022, employment eligibility and/or EAD validity will resume for a period not to exceed 540 days from the “Card Expires” date on the EAD for qualifying noncitizens with a pending renewal Form I-765, Application for Employment Authorization, who experienced a gap in employment authorization and/or the validity of their EAD because their 180-day automatic extension ended prior to May 4, 2022. The rule does not cure any unauthorized employment that may have accrued prior to issuance of the rule. To calculate whether there is any automatic extension time remaining, count 540 days from the expiration date stated on the front of the EAD. If an employee falls within category codes A17, A18, or C26 and therefore is an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes on Form I-94, count up to either 540 days or the expiration date on Form I-94, whichever is earlier. 

Employers should follow the How to Complete Form I-9 for EADs Automatically Extended Based on a Pending Form I-765 Renewal Application guidance below. Your employee’s Form I-797C, Notice of Action, may refer to an automatic EAD extension of up to 180 days and when combined with their EAD, is acceptable evidence of the extension of up to 540 days, provided that the above-described eligibility requirements are satisfied.

If you rehire an employee within three years from the date you completed the employee’s previous Form I-9 and who qualifies for this extension, you may reverify the employee’s employment authorization in Section 3 of the employee’s previous Form I-9 or complete a new Form I-9.

Automatic Extensions Based on a Timely Filed Application to Renew Employment Authorization and/or Employment Authorization Document

Noncitizens in certain employment eligibility categories who file Form I-765, Application for Employment Authorization, to renew their employment authorization and/or EADs may receive automatic extensions of their employment authorization and/or EAD while their renewal applications remain pending. Those who file(d) their applications on or before Oct. 26, 2023 receive an extension of up to 540 days. Those who file their application after Oct. 26, 2023 receive an extension of up to 180 days. The extension begins on the date the EAD expires and generally continues for up to 540 days or up to 180 days as applicable, unless USCIS denies the renewal application. An automatic extension of employment authorization and/or EAD validity depends on these eligibility requirements:

• Employees must have timely filed an application to renew their employment authorization and/or EAD on Form I-765, Application for Employment Authorization, before the EAD expires (except certain employees with Temporary Protected Status (TPS)), and the Form I-765 renewal application remains pending.
• The eligibility category on the front of the employee’s EAD must have the same eligibility category as on the employee’s Form I-797C, Notice of Action issued for the corresponding EAD renewal application. Exceptions:
  • In the case of an EAD and I-797C, Notice of Action, that each contains either an A12 or C19 TPS category code, the category codes do not have to match.
  • For H-4 (C26), E (A17) and L-2 (A18) dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status, including E-1S, E-2S, E-3S and L-2S class of admission codes, must accompany Form I-797C. 
• Employees must have one of these qualifying eligibility categories to receive an automatic extension of their employment authorization and/or EAD validity: A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19. The eligibility categories are published on the USCIS Automatic EAD Extension page. Some category codes on the EAD may include the letter ‘P’ such as C09P. Employers should disregard the letter ‘P’ when comparing the category code on the EAD with the category code on the Form I-797C, Notice of Action. *There are limitations on employees who file a Form I-765 renewal application within categories A17, A18, and C26 for an automatic extension. See A17, A18, and C26 guidance below. 

If an employee is eligible for the automatic extension, acceptable proof of employment authorization and/or EAD validity during the automatic extension period includes:  a EAD that appears expired on the face of the card presented with a Form I-797C, Notice of Action, that shows a timely filed EAD renewal application in the same employment eligibility category as the EAD. See Automatic EAD Extensions for Temporary Protected Status (TPS) Beneficiaries below for information on TPS-based EAD auto-extensions that may not require a Form I-797C, Notice of Action, and Guidance for Employees under Category Codes A17, A18, and C26 for information about the additional unexpired Form I-94 documentation that H-4, E, and L-2 dependent spouses need to present with a Form I-797C, Notice of Action.

To find the eligibility category on your employee’s EAD, see Figure 7 below:

Figure 7: Auto-Extended Employment Authorization Documents

Finding the Category and Expiration Date on an EAD (Form I-766)

The eligibility category appears on the EAD under “Category”.

The expiration date appears to the right of “Card Expires”.

Finding Information from the I-797C: Sample A

The receipt number appears on Form I-797C, Notice of Action, in the Receipt Number field, as noted in number 1.

The filing date (the date USCIS received the application) appears in the Received Date field, as noted in number 2. Except as explained below for TPS beneficiaries, this date should be on or before the “Card Expires” date on the EAD. Also, if the “Received Date” is on or before Oct. 26, 2023, the automatic extension period is up to 540 days from the expiration date on the EAD.  If the “Received Date” is after Oct. 26, 2023, the automatic extension period is up to 180 days from the expiration date on the EAD.

The category may appear on Form I-797C in the Class Requested field, as noted in number 3. If you do not see this field, see Sample 2 below.

Finding Information from the I-797C: Sample B

The receipt number appears on Form I-797C in the Receipt Number field.

The filing date (the date USCIS received the application) appears in the Received Date field. This date should be on or before the “Card Expires” date on the EAD.

The category may appear on Form I-797C in the Eligible Category field.

How to Complete Form I-9 for EADs Automatically Extended Based on a Pending Form I-765 Renewal Application

New Employees

New employees presenting an EAD that has been automatically extended must complete Section 1 as follows:

• Select “An alien authorized to work until;” and
• Depending on the “Received Date” on Form I-797C, enter the appropriate date (either 540 days or 180 days from the “Card Expires” date on the EAD) as the expiration date of employment authorization. Employees whose status does not expire, such as refugees or asylees, should enter N/A as the expiration date.

In Section 2, the employer must:

• Enter EAD in the Document Title field.
• Enter the receipt number from Form I-797C, Notice of Action, in the Document Number field.
• In the Expiration Date field, enter the date 540 days from the “Card Expires” date on the EAD if the “Received Date” on Form I-797C is on or before Oct. 26, 2023 or enter the date 180 days from the “Card Expires” date on the EAD if the “Received Date” on Form I-797C is after Oct. 26, 2023.

For automatic extensions of up to 540 days (which reflects a temporary increase to the normal automatic extension of up to 180 days), the employer should enter EAD EXT in the Additional Information field and may keep a copy of the USCIS webpage describing the temporary extension of up to 540 days with the employee’s Form I-9.

You may use the Employment Authorization Document (EAD) Automatic Extension Calculator to determine extended expiration dates.

Rehired Employees

For employees rehired within three years from the date you completed the employee’s previous Form I-9 and who qualify for this extension, you may choose to either complete the Form I-9 following the process described above, or update their previous Form I-9 and enter the appropriate automatic extension expiration date in Section 3.

Current Employees

For a current employee whose employment authorization and/or EAD has been automatically extended and who presents a Form I-797C, Notice of Action, you must enter the appropriate automatic extension expiration date in the Section 2 Additional Information field. Employers should also enter EAD EXT in the same field and may keep a copy of the USCIS webpage describing the temporary extension of up to 540 days with the employee’s Form I-9, if applicable.

Employees Who Experienced a Gap in Employment Authorization and/or EAD Validity Before May 4, 2022

For new or rehired employees who received an automatic extension that expired before May 4, 2022, and whose employment authorization and/or EAD validity resumed on May 4, 2022, as a result of the temporary increase in the automatic extension period to up 540 days, employers should follow the process applicable to new or rehired employees described above.

Guidance for Employees under Category Codes A17, A18, and C26

Employees with EADs with Category Codes A17, A18, and C26 require additional documentation supplementing the Form I-797C, Notice of Action, to show that the EAD has been automatically extended.  These employees must present a Form I-94, Arrival-Departure record indicating unexpired nonimmigrant status (E-1, E-1S, E-2, E-2S, E-3, E-3S, H-4, L-2 or L-2S), along with a Form I-797C, Notice of Action, that shows a timely-filed EAD renewal application stating the “Class requested” as “(A17),” “(A18),” or “(C26),” and the EAD that appears expired on the face of the card as having been issued under the same category (that is, Category A17, A18, or C26).

For a new employee, in Section 2, the employer must:

• Enter EAD in the Document Title field.
• Enter the receipt number from Form I-797C, Notice of Action, in the Document Number field.
• In the Expiration Date field, enter the date that is 540 days from the “Card Expires” date on the EAD if the “Received Date” on Form I-797C is on or before Oct. 26, 2023, or the end date of the Form I-94, whichever is earlier. If the “Received Date” on Form I-797C is after Oct. 26, 2023, enter the date that is 180 days from the “Card Expires” date on the EAD or the end date of the Form I-94, whichever is earlier.
• Enter the Form I-94 document information in the second set of List A Document entry fields. 

To calculate the new expiration date:

• Add 540 or 180 days to the EAD “Card Expires” date, whichever time period is applicable depending on the “Received Date” on Form I-797C.
• Compare the 540-day or 180-day auto-extended date to the Form I-94 end date.
• Whichever date is earlier is the new EAD expiration date.

The employer should enter EAD EXT in the Additional Information field in Section 2. If applicable, you may keep a copy of the USCIS webpage describing the temporary EAD extension of up to 540 days with the employee’s Form I-9. Employers must reverify employment authorization at the end of the automatic extension period.

Automatic EAD Extensions for Temporary Protected Status (TPS) Beneficiaries

DHS may extend the expiration date of a TPS beneficiary’s EAD either by Federal Register notice or an individual notice mailed to the beneficiary. You may not ask employees to prove they are nationals of a country that DHS has designated for TPS.

Automatic Extensions by Federal Register Notice (FRN)

FRNs announcing TPS actions generally include an automatic extension of the expiration date of all associated TPS EADs that contain a specific “Card Expires” date and a category code of A12 or C19. The FRNs provide detailed instructions for completing or updating Form I-9. For TPS EAD automatic extension information, check the USCIS TPS webpage.

How to Complete Form I-9 for EADs Extended by FRN

In Section 1, new employees presenting an EAD automatically extended by FRN must:

• Select “An alien authorized to work until;” and
• Enter the EAD automatic extension date provided in the appropriate FRN as the expiration date. Employees can find a link to their TPS country’s FRN on the USCIS TPS webpage.

In Section 2, the employer must:

• Enter EAD in the Document Title field.
• Enter the document number from the EAD with Category A12 or C19, as applicable.
• Enter the automatic extension date provided in the FRN as the document expiration date.

For a current employee whose EAD has been automatically extended by FRN, employers must provide updated information on Form I-9. They should enter EAD EXT and the EAD automatic extension date from the FRN in the Additional Information field in Section 2. For example, EAD EXT mm/dd/yyyy.

Automatic Extensions by Individual Notice

DHS may extend the EAD expiration date for some or all TPS beneficiaries of a certain country by issuing an individual notice that contains the new EAD expiration date. Check the USCIS TPS webpage for the latest information on TPS countries whose beneficiaries may have been issued individual notices.

New employees who are TPS beneficiaries may present the individual notice, along with their EAD with a Category Code of A12 or C19, to complete Form I-9. Employers should ensure the employee’s name, and A-Number or USCIS Number, on the EAD matches the name, and A-Number or USCIS Number, provided in the individual notice.

How to Complete Form I-9 for EADs Extended by Individual Notices

In Section 1, new employees presenting an EAD automatically extended by an individual notice must:

• Select “An alien authorized to work until;” and
• Enter the EAD automatic extension date provided in the individual notice as the expiration date.

In Section 2, the employer must:

• Enter EAD in the Document Title field.
• Enter the document number from the EAD with Category A12 or C19, as applicable.
• Enter the automatic extension date provided in the individual notice as the document expiration date.

For a current employee whose EAD has been automatically extended by individual notice, you must provide updated information on Form I-9. You should enter EAD EXT and the EAD automatic extension date from the individual notice in the Additional Information field in Section 2. For example, EAD EXT mm/dd/yyyy.

Reverification

You must reverify employees’ employment authorization when their automatic extension ends, and no later than the date their employment authorization expires. You can reverify temporary employment authorization before the automatic extension ends if an employee presents any unexpired document that shows employment authorization, such as any acceptable document from List A or C.