USCIS Announces Extension for Expiring Work Permits

​Tens of thousands of foreign workers with expiring employment authorization documents (EADs) will be granted an extension of 540 days from the initial expiration date on those documents.

U.S. Citizenship and Immigration Services (USCIS) announced it will temporarily increase the automatic extension period of expiring work permits for many EAD renewal applicants.

"Currently, certain individuals with expiring employment authorization documents can continue working for an additional 180 days as long as they have timely submitted for a replacement EAD and have been issued a receipt notice, in the same employment eligibility category," said Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis. "Because actual processing times for replacement EADs currently is up to over 11 months, a significant number of employees are not in receipt of their replacement EADs within the 180-day period and cannot legally continue to work."

Affected workers will now be able to use their EADs for nearly 18 months after they expire, a measure USCIS is taking to address an enormous backlog of EAD applications.

The increase, which is effective immediately, will help avoid gaps in employment for those with pending EAD renewal applications and stabilize the continuity of operations for U.S. employers, said USCIS Director Ur Jaddou. "As USCIS works to address pending EAD caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient," she said. "This temporary rule will provide those workers otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families, while avoiding further disruption for U.S. employers."

The policy includes any pending EAD renewal applications and applicants whose work authorization may have lapsed following their initial 180-day extension period. It also applies to any eligible EAD renewal applicants who file between May 4 and Oct. 26, 2023. Automatic extensions of employment authorization and EAD validity will revert to the 180-day period for eligible applicants beginning Oct. 27, 2023. The rule does not apply to those applicants seeking initial approval for work authorization.

A Reprieve for Many

Work permits are granted to various categories of immigrants, and those covered under this policy change include green card applicants, the spouses of H-1B and L visa recipients, and workers granted Temporary Protected Status.

USCIS has been the target of lawsuits in recent years over processing delays that have forced some people from their jobs as they wait for EADs to be renewed.

"There are many foreign workers out there who were about to lose their employment authorization or have already lost it due to USCIS delays," said David Jones, managing partner of the Memphis office of Fisher Phillips. "This change will allow employers to bring back immediately covered workers who had to be put on leave or terminated and prevents them from losing many others whose work authorization was about to lapse."

The new policy will immediately benefit about 87,000 workers who have filed for a renewal and are currently past, or soon will be past, the existing 180-day automatic extension period.

Jones said it's also possible that USCIS processing of EAD extensions for workers not covered by the rule change will speed up as well, now that the agency may be able to prioritize them over the EADs that are covered. 

"On the other hand, it may not bode well for the overall backlog," he said. "The fact that USCIS is creating a 540-day automatic extension indicates that these applications may continue to be extremely backlogged for the foreseeable future."

Jones added that despite the change, employers should continue to ensure that employees file their extensions as soon as possible to help prevent the risk of a lapse in work authorization.

Work permit holders can seek renewal up to six months before their documents are scheduled to expire.

Agency Challenges

Jaddou explained that a confluence of events has impaired the agency's operations and caseload processing, including the emergency measures employed during the COVID-19 pandemic, combined with a sudden increase in initial and renewal EAD filings. She said she wants to return to the agency's goal of achieving a three-month cycle time for EAD applications by the end of fiscal year 2023.

"We all understand that the pandemic has only added to the agency's growing backlogs, but the processing troubles began long before COVID," said Benjamin Johnson, executive director of the American Immigration Lawyers Association based in Washington, D.C. "There are many easy changes that we have recommended to USCIS that would make a real difference in reducing crisis level backlogs, including the one announced today. Among the other recommended changes is making electronic filing more accessible to attorneys and adjudicating related cases together. We also encourage the agency to be more transparent about processing goals and processing times for different form types, and to conduct an agency review of form length."

USCIS recently announced new measures to speed up processing times, including offering premium processing for additional forms and setting new goals to decrease wait times.

Employment Verification

Neifach of Jackson Lewis reminded HR professionals that to complete a Form I-9 for someone entitled to the new 540-day extension, "the employee must present their receipt notice showing a timely filed EAD renewal in the same category as the expired EAD. If someone has been terminated because their 180-day extension has already expired, the employer may do a reverification or a new Form I-9," he said.