New USCIS Rule extends certain Employment Authorization Documents by up to 540 Days

On May 4, 2022, USCIS announced that it would automatically extend certain Employment Authorization Documents (work permits) from 180 days to 540 days in order to address severe delays in processing the Form I-765, Application for Employment Authorization.

The eligibility requirements for the new rule are:

• The individual must have already been issued a work permit in one of the categories listed by USCIS (see below). DACA and F-1 OPT-based work permits are NOT included in the automatic extension.
• The individual must have already filed an I-765 application to renew their work permit before it expired.
• The individual must have filed an I-765 application requesting an extension of their work permit based on the same category as the expiring work permit. Note that there is an exception for TPS-based work permits, as categories A12 or C19 are used interchangeably.
• The I-765 application must remain pending and not have been denied by USCIS; the extension period automatically ends if the I-765 is denied.

THE CATEGORIES that qualify for the automatic extension are: A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19. Note that some category codes on the work permit may include the letter ‘P’ such as C09P. Employers are instructed to disregard the letter ‘P’ when comparing the category code on the work permit with the category code on Form I-797C, Notice of Action. *Only certain employees who file a Form I-765 renewal application within categories A17, A18, and C26 are eligible for an automatic extension: H-4, E, or L-2 dependent spouses, including E-1S, E-2S, E-3S and L-2S class of admission codes on Form I-94.

Note: When presenting proof of employment authorization to an employer for Form I-9, Employment Eligibility Verification, purposes, H-4, E, and L-2 dependent spouses must also present an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status (including E-1S, E-2S, E-3S, and L-2S class of admission codes) together with a Form I-797C.

This new rule applies to individuals who have a pending I-765 application as of May 4, 2022 (including those whose 180-day extension period expired before May 4, 2022) AND individuals who file an I-765 application from May 4, 2022, through October 26, 2023.

Finally, it should be noted that the 540-day extension provided by this new rule is temporary, as USCIS will revert and go back to the 180-day automatic extension period on October 27, 2023.