On November 18, 2016, the U.S. Department of Homeland Security (DHS) issued a final rule, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, which granted automatic extensions of Employment Authorization Documents (EADs) in certain circumstances. Specifically, the rule—effective January 17, 2017—automatically extends the employment authorization and validity of existing EADs for 180 days from the date of expiration if:
- The renewal application is filed based on the same employment authorization category as the previously issued EAD;
- The renewal application is timely filed prior to the expiration of the EAD and remains pending; and
- The individual is eligible for employment authorization beyond the expiration the previously issued EAD.
The following categories of EADs will be eligible for this automatic 180-day extension:
- (a)(3) Refugee;
- (a)(5) Asylee;
- (a)(7) N-8 or N-9;
- (a)(8) Citizen of Micronesia, Marshall Islands, or Palau;
- (a)(10) Withholding of Deportation or Removal Granted;
- (a)(12) Temporary Protected Status (TPS) Granted;
- (c)(8) Asylum Application Pending;
- (c)(9) Pending Adjustment of Status under section 245 of the Immigration and Nationality Act;
- (c)(10) Suspension of Deportation Applicants (filed before April 1, 1997), Cancellation of Removal Applicants, and Special Rule Cancellation of Removal Applicants under NACARA;
- (c)(16) Creation of record (Adjustment based on continuous residence since January 1, 1972);
- (c)(19) Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”;
- (c)(20) Section 210 Legalization (pending Form I-700);
- (c)(22) Section 245A Legalization (pending Form I-687);
- (c)(24) LIFE Legalization; and
- (c)(31) VAWA Self-Petitioners.
The final rule specifically excludes the following categories from the 180-day automatic extension: L-2, E-1, E-2. H-4, and DACA.
Please note that the final rule provides that TPS individuals are eligible for an automatic extension of their employment authorization two ways:
- Through publication of a Federal Register notice extending the TPS designation of the individual’s country (as long as the Federal Register notice also authorizes an automatic extension of covered individuals’ existing EADs); and/or
- Through the final rule’s 180-day automatic extension.
The automatic 180-day extension of timely filed, pending EAD renewals aims to prevent gaps in employment authorization and documentation. To determine whether the 180-day automatic extension of work authorization applies, employers should review Form I-765 filing receipts and identify the EAD category code and expiration date. An employee may be entitled to continue to work for another 180 days!
Additional Resources If you have questions on this or other employment based immigration matters, be sure to contact Berardi Immigration Law to schedule a consult today
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