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Automatic Employment Authorization Extensions – How to Calculate

Posted by chapteradmin on Jul. 13, 2022  /  Legal Updates  /  Subscribe 0

By Alexandra LaCombe, Jackson Lewis, P.C.

At a glance

Some employment Authorization Documents (EAD) issued to foreign national workers are subject to automatic extensions, yet others are not. It is important for employers to be able to identify which are which in order to remain compliant.

Background

On May 4, 2022, in response to the lengthy pendency of EAD applications, DHS published a temporary final rule (87 FR 26614) in the Federal Register to temporarily increase the automatic EAD extensions for applicants within certain employment eligible categories . This rule increases the automatic extension period from up to 180 days to up to 540 days. The automatic extension of up to 540 days applies to qualifying renewal applicants whose Forms I-797C, Notices of Action, have a “Received Date” of between May 4, 2022 and October 26, 2023.

• • • The eligible categories, identified by the code on the face of the expired card, include Refugees (A03)
    • Asylees (A05)
    • Parent or dependent child of an international organization employee granted permanent residence (A07)
    • Citizens of Micronesia, the Marshall Islands or Palau admitted as nonimmigrants (A08)
    • An individual granted withholding or deportation or removal (A10)
    • Certain asylum applicants (C08)
    • Adjustment of status applicants (C09)
    • NACARA applicants for suspension of deportation or cancellation of removal (C10)
    • Registry applicants (C16)
    • Special agricultural workers (C20)
    • Legalization applicants under INA 245A (C22)
    • LIFE applicants (C24)
    • VAWA beneficiaries and children (C31)
    • Temporary Protected Status (TPS) beneficiaries (A12 and C19)

Certain H (C26), L (A18), or E (A17) spouses are also entitled to 180- or 540-day automatic renewals, but only if they are in possession of unexpired Form I-94/entry document. In other words, they must still maintain valid status in the U.S. in order to be able to maintain employment authorization. Moreover, L or E spouses with proper annotations on their I-94s have employment authorization incident to status, so they may not need an EAD. To ease the 540-day calculation, USCIS has created a new tool, an EAD Automatic Extension Calculator (https://www.uscis.gov/i-9-central/form-i-9-resources/employment-authorization-dcoument-ead.automatic-extension-calculator). The calculator helps to determine the 540-day end date, once it is determined if the 540-day automatic renewal applies.

What it means for employers

While this is a great benefit to both employees and their employers, it is critical to determine the correct category of eligibility and complete the required documentation. If the current employee’s Form I-9 shows an EAD that was automatically extended by 180 days, the employee might be eligible to receive an additional extension of 360 days and continue to work during that period. While employers are not required to re-examine documents, they must timely review them to determine the employee’s eligibility for an additional period of employment and update the employee’s Form I-9.

If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 936-1929 or [email protected]. Alexandra is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Jackson Lewis, P.C.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2022

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