A new rule aims to prevent individuals from being forced to leave their jobs because of long delays in the U.S. Citizenship and Immigration Services (USCIS) processing of employment authorization documents (EADs). The rule is a welcomed temporary fix for those who faced lost employment.
What is the Problem USCIS Is Trying to Solve? During testimony on April 6, 2022, before the House Committee on Appropriations, USCIS director Ur Jaddou noted there are 1.5 million pending requests for work permits, reported Suzanne Monyak of Roll Call. As a result, people are losing work authorization—and others saw the prospect of unemployment—at the same time employers around the United States remain desperate to fill jobs. To her credit, note analysts, Jaddou decided to take action in a new temporary final rule to resolve the immediate problem for many applicants by extending work authorization an additional year and a half for those with timely renewal applications.
What Does The New Rule Do? According to the USCIS regulation, “This rule temporarily amends existing Department of Homeland Security (DHS) regulations to provide that the automatic extension period applicable to expiring Employment Authorization Documents (Forms I-766 or EADs) for certain renewal applicants who have filed Form I-765, Application for Employment Authorization, will be increased from up to 180 days to up to 540 days from the expiration date stated on their EADs.
“This increase will be available to eligible renewal applicants with pending Forms I-765 as of May 4, 2022, including those applicants whose employment authorization may have lapsed following the initial 180-day extension period, and any eligible applicant who files a renewal Form I-765 during the 540-day period beginning on or after May 4, 2022, and ending October 26, 2023.” (Emphasis added.)
Who Will Benefit From The Rule? Three primary groups will benefit from the new USIS rule. “1) EAD renewal applicants eligible for the automatic extension who already have filed their renewal Form I-765 application, which remains pending on May 4, 2022, and whose EAD has not expired or whose current up to 180-day auto-extension has not yet lapsed,” notes a policy update from Berry Appleman & Leiden.
“2) New renewal applicants who file Form I-765 during the 18-month period following the rule’s publication to avoid a future gap in employment authorization and/or documentation. [And] 3) Renewal applicants who are already experiencing a gap in employment authorization and/or EAD validity. For these applicants, this TFR [Temporary Final Rule] provides that employment authorization and/or validity of their EADs will resume beginning on the date the rule is published in the Federal Register, May 4, 2022, and continue for a period of up to 540 days from the date their employment authorization and/or EAD expired, as shown on the face of the EAD.”
What Is the Impact Of The Rule On People With EAD Renewals? Attorneys and their clients are pleased with the USCIS action. “The rule is welcome news for many people with pending EAD renewals, or who will be filing renewals soon,” said Kevin Miner of Fragomen in an interview. “Current processing times are so slow that even when applicants file for renewal as far in advance as allowed, they still are at risk of having a gap in work authorization. For many of those applicants, extension of the automatic extension to 540 days will solve this problem. However, it doesn’t solve this problem for all EAD holders. H-4 EAD holders, for instance, are still limited to an automatic extension only until their existing H-4 I-94 expires, and since H-4 status renewal processing times are also incredibly long those individuals still run a significant risk of running out of work authorization even with this new rule.”
Does the Rule Affect People With New Applications? “Directly, the rule doesn’t affect new applicants at all,” said Miner. “It is limited to only those individuals renewing an existing employment authorization document. However, I think many people were surprised by how long the automatic extension will be—540 days is a long time. This causes me to wonder whether USCIS intends to shift its resources to try to shorten processing times for new EAD applications, since people with pending renewals would be protected for a long time by the automatic extension from this rule. If that is correct, we may well see new EAD applications processed more quickly, so this rule could provide an indirect benefit to new applicants as well.”
What Advice Do You Have For Employers And Applicants? “Even with this rule, EAD applications should be filed as early as the agency allows,” according to Miner. “The automatic extension from this rule will certainly help in a lot of cases, but it doesn’t solve every problem. For instance, employers and applicants with pending adjustment of status applications should remember that this rule only affects the processing of EADs—it doesn’t affect advance parole travel authorization.
“For someone who isn’t maintaining underlying H or L nonimmigrant status, they could continue to work based on the automatic extension but wouldn’t be able to leave the United States until the advance parole is issued. Applications for advance parole are suffering from the same lengthy processing times, so employers should also continue to consider renewing the employee’s underlying nonimmigrant status rather than just relying on the EAD and advance parole for an adjustment of status applicant.”
USCIS still must dig out from a processing backlog that has developed over the past half-decade or more. Individuals and employers welcome a new USCIS policy to ensure those who file timely renewal applications for employment authorization do not lose their jobs.