USCIS Ends Automatic Work Permit Extensions, Citing Security Risks

The practice of automatically extending the validity of employment authorization documents (EADs) for workers who file renewal applications is coming to an end, according to U.S. Citizenship and Immigration Services (USCIS). 

The agency's interim final rule prioritizing vetting and screening of foreign national workers before granting a new period of employment authorization was published Oct. 30. Limited exceptions to the rule include extensions provided by law or through a Federal Register notice for employment documentation related to temporary protected status. 

Effects of Interim Final Rule

The interim final rule does not affect EADs that were automatically extended before Oct. 30. 

EADs allow foreign nationals to work legally in the U.S. and are granted for a certain period. Once they lapse, workers must apply for a renewed document. Workers applying for renewed work authorization will now be required to wait for USCIS adjudication and issuance of a new EAD before continuing employment after their EAD card expires. 

Before Oct. 30, certain EAD card holders applying for renewals were automatically granted an extension of their current work permit for up to 540 days to allow them to continue legally working while USCIS worked through a backlog of cases. 

It should be noted that work authorization is separate from a person's underlying immigration status. Losing or having a lapse in employment authorization does not mean a loss of legal status in the U.S. An EAD does not by itself grant lawful presence, and not everyone needs one to work legally in the U.S. Those requiring EADs include workers applying for adjustment of status and H-4 spouses of H-1B visa holders. 

Specialty Credential: U.S. Employment Immigration

Ending automatic extensions of EADs will result in more frequent vetting and will enable USCIS to better deter fraud, the agency said.  

"The automatic extension of the validity of an EAD grants the benefit without an eligibility determination; without completing vetting and screening checks; without resolving potential hits of derogatory information; and, when applicable, without a determination that the employment authorization should be granted in the exercise of discretion," USCIS said. Workers were able to "obtain an automatic extension despite derogatory information that could flag them as a national security or public safety risk." 

USCIS recommends workers seek a timely renewal of their EAD by properly filing a renewal application up to 180 days before their EAD expires. The longer someone waits to file an EAD renewal application, the more likely it is that they may experience a temporary lapse in their employment authorization.  

"Due to the unpredictable fluctuations in EAD processing times and the limited availability of premium processing or expedited review in most employment authorization categories, temporary lapses in employment authorization may occur, even for foreign nationals who file an EAD renewal application at the earliest possible instance," cautioned Amy Peck, an immigration attorney with Jackson Lewis in Omaha, Neb. 

Each year, up to 450,000 people apply for EAD extensions, USCIS said. The agency processes about 49,000 applications each month. 

Experts anticipate the rule will be challenged in court. 

Toolkit: Understanding and Obtaining U.S. Employment Visas

What Employers Should Do Now

Eileen Lohmann, an attorney in the Washington, D.C., office of BAL, said that given the processing times for work authorization documents, employers will need to prepare for more frequent disruptions to employees’ work authorization.  

"Without the automatic extension in place, foreign nationals relying on an employment authorization document will need to file to renew as far out as they can, and employers should consider reminding employees of their reverification obligations earlier than they would today," she said. 

"It will also be critical to ensure that team members completing the Form I-9 process understand the current rules, to ensure the employer is properly tracking expiration dates," Lohmann said. "Employers should consider updating their training and standard operating procedures both for onboarding new employees and reverifying the work authorization of current employees."