5.1 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 properly 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: an 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 automatic 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.

Finding Information on Form I-797C: Sample A

I-797 RECEIPT NOTICE EXEMPLAR

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. Certain TPS beneficiaries are  eligible for this extension if they have timely and properly filed to renew their EAD as directed by the Federal Register Notice for their designated country. Therefore, the filing date on a TPS beneficiary’s Form I-797C might be after the “Card Expires” date on their TPS-based EAD. For more information, go to https://www.uscis.gov/humanitarian/temporary-protected-status.

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 B below.

Finding Information on Form I-797C: Sample B

I-797 RECEIPT NOTICE EXEMPLAR

The receipt number appears on Form I-797C 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. 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, as noted in number 3.

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 “A noncitizen 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, in the List A column, 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 must complete Form I-9 following the process described above.  If the employee’s original Form I-9 was completed on a Form I-9 that is no longer valid, you must either complete the latest version of Form I-9 or Supplement B, Reverification and Rehire, and attach it for this employee.

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. If the employee’s original Form I-9 was completed on a Form I-9 that is no longer valid, enter EAD EXT and the new expiration date in the Additional Information field in Section 2 of the latest version of Form I-9 and retain it with the employee’s original Form I-9.

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, in the List A column, 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.

Reverification

You must reverify employees’ employment authorization when their automatic extension of their employment authorization 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 acceptable, unexpired document that shows employment authorization, such as any acceptable document from List A or C.