Benesch Friedlander Coplan & Aronoff
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The Department of Homeland Security announced that effective May 4, 2022, the government is temporarily extending the automatic extension period for certain I-765 Employment Authorization Documents (EADs).
Currently, eligible employees in certain categories who requested renewal of their EAD before it expired may continue to work with their I-797 notice of receipt for 180 days beyond the expiration date of their EAD, pending their notice of approval or new cards to arrive. But, with the current backlog of EAD renewal processing times, DHS has extended this “automatic renewal” period beyond 180 days.
In fact, the auto-renewal period has been extended for another 360 days, for a total of 540 days. To benefit from this longer automatic extension, employees should have applied in a timely manner to renew their EAD. However, even if an employee’s EAD had already expired, their EAD validity will automatically resume from May 4, 2022.
Not all categories of employees holding EADs are eligible for this extension. Employees and employers can access the announcement, which includes the list of eligible categories, at https://www.uscis.gov/eadautoextend. For example, some of the most common categories eligible are refugees, asylum seekers, people with pending status under Section 245, and people with TPS or Temporary Protected Status.
Employers must update I-9 forms for employees with these automatic extensions. An eligible employee’s Form I-797, Notice of Action, when combined with the EAD, is acceptable proof of an extension for up to 540 days. For current employees, an employer would update the Additional Information field in Section 2 with the appropriate expiration date and enter “EAD EXT”. Employers should also keep a copy of the USCIS web page announcement attached to the Form I-9. For rehired employees, the appropriate automatic extension date should be indicated in Section 3 of Form I-9.
Finally, new hires who show up with an expired EAD and an I-797 Notice of Receipt should not automatically be denied employment. or requested to present different or alternative documents establishing eligibility for employment. Instead, employers should verify that the employee is in a category eligible for the 540 extension and that the “date received” on the I-797 is earlier than the expiration date on the EAD.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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