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On May 4, 2022, U.S. Citizenship and Immigration Services
(USCIS) announced a Temporary Final Rule (TFR) that increases the
automatic extension period for certain Employment Authorization
Document (EAD) categories up to 540 days, effective immediately and
valid through Oct. 15, 2025.
Historically, certain EAD categories were only eligible for an
extension up to 180 days. The TFR will help avoid employment gaps
for foreign nationals with pending EAD applications.
What does the Temporary Final Rule mean for your
- If an employee’s automatic extension lapsed prior to May 4,
2022, the employment authorization automatically resumed, and the
EAD validity period began on May 4, 2022 and will continue up to
540 days from the expiration of the EAD card.
- If an employee’s EAD card has expired but the employee
still has time remaining in the 180-day extension, they are now
able to receive an additional 360 days, for a total of 540 days
past their EAD “Card Expires” date.
- If an employee’s EAD card has not expired yet and the Form
I-765 is still pending, then the employee will receive an automatic
extension of up to 540 days once their EAD card expires before
their Form I-765 is adjudicated.
- If an employee files an EAD renewal application between May 4,
2022 and Oct. 26, 2023, then the employee’s EAD will
automatically be extended up to 540 days if their EAD card expires
before their Form I-765 is adjudicated.
Are my employees eligible for the 540-day extension?
To qualify for the extension, the employee must:
- Fall within the following categories: A03, A05, A07, A08, A10,
A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12
or C19. (See below for guidance on A17, A18 and C26)
- Have timely filed a Form I-765 Application for Employment
Authorization, before their current EAD expired.
- Have an I-797C, Notice of Action for the filed Form I-765 that
contains the same category code as their expiring EAD.
The TFR will no longer apply to applications after Oct. 26, 2023
and USCIS will return the 180 automatic extension rule.
Guidance for Category Codes A17, A18 and C26
For employees who fall within EAD categories A17 (E spouses),
A18 (L-2 spouses) and C26 (H-4 spouses), the extension period
cannot exceed the Form I-94 end date. Employees will need to
present their expired EAD, their I-797C Notice of Action and Form
I-94 to determine the extended expiration date. In these instances,
the extension may be greater than 180 days but fewer than the
additional 360 days, as the EAD must expire when the Form I-94
What does the TFR mean for I-9 Compliance?
If your current or new employee’s EAD has expired, please
follow these steps:
- Determine if the employee qualifies for an automatic extension
by reviewing the employees EAD card, Form I-797C, Notice of Action
(Receipt for timely field EAD extension) and if applicable, Form
- Calculate whether there is any automatic extension time
remaining. Count 540 days from the expiration date stated on the
front of the EAD.
- Update the employee’s Form I-9 no later than the date the
employee’s 180-day extension ends:
- Enter the EAD in the document title field.
- Enter the receipt number from Form I-797C, Notice of Action, in
the Document Number field.
- In the Expiration Date field, enter the date 540 days from the
“Card Expires” date on the EAD if the “Received
Date” on Form I-797C is on or before Oct. 26, 2023 or enter
the date 180 days from the “Card Expires” date on the EAD
if the “Received Date” on Form I-797C is after Oct. 26,
It is important to note that the TFR does not cure any
unauthorized employment that may have occurred before the issuance
of this rule.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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