by Amy L. Peck, Jackson Lewis Law Firm

Good news for those applying for or with pending Employment Authorization Document (EAD) renewals. The Department of Homeland Security 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.