- Overview of New Regulations
- Guidance in the Fact Sheet
On November 18, 2016, the Department of Homeland Security (DHS) published a new final rule in the Federal Register (FR) titled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Immigrant Workers” [81 FR 82398]. The new rule went into effect on January 17, 2017. Please see our full article for a summary of the most important provisions of the rule and our directory to articles on the subjects [see article].
In this article, we will discuss the amendments to the regulations found in 8 C.F.R. 274a.13 regarding changes to the processing of applications for employment authorization and regarding automatic extensions of Employment Authorization Documents (EADs) in certain cases. In addition to the Federal Register notice, we will rely upon a United States Citizenship and Immigration Services (USCIS) Fact Sheet on the subject published on January 30, 2017, titled “Automatic Extensions of EADs Provided by the 'Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers' Final Rule” (“Fact Sheet”) [PDF version].
The amended regulations at issue in this article are found in 8 C.F.R. 274a.13(a) and (d) [see 8 C.F.R. 274a.13]. In the following sections, we will examine the actual language of the regulations.
The USCIS made a minor tweak to the text of 8 C.F.R. 274a.13(a). Under the language of the amended 8 C.F.R. 274a.13(a), the USCIS stated that it may announce through its website in addition to form instructions, “which employment categories may file EAD applications concurrently with underlying benefit requests,” as well as form instructions (see 82 FR 82455).
The most significant changes to 8 C.F.R. 274a.13 are found in part (d).
First, the original version of 8 C.F.R. 274a.13(d) required the USCIS to adjudicate each Form I-765, Application for Employment Authorization, within 90 days of the filing of the application. In the event that the USCIS did not fully adjudicate a Form I-765 within the mandated 90-day period, the applicant would be issued an interim EAD. The USCIS explains at 82 FR 82455 that the new rule does away with the regulatory requirement that it adjudicate each Form I-765 application within 90 days.
The new 8 C.F.R. 274a.13(d) provides for the automatic extension of EADs in certain cases.
At 82 FR 82456, the DHS stated that it plans to adopt a filing policy “that will generally permit the filing of an EAD renewal application up to 180 days before the current EAD expires, except when impracticable.” However, the USCIS will not always allow applications to be filed up to 180 days before an EAD expires. The USCIS will update its website with information regarding the filing windows (see 82 FR 82457).
Under the new 8 C.F.R. 274a.13(d)(1), when the applicant files a renewal application the USCIS will automatically extend an expiring EAD for aliens who are not employment authorized incident to status for a period of 180 days from the date on which the EAD would otherwise have expired. In specified cases, this automatic extension will occur notwithstanding 8 C.F.R. 274a.14(a)(1)(i), which provides generally that an EAD that has expired is invalid. However, in order for an EAD to be subject to the 180-day extension, the renewal application must meet the following requirements (paraphrased):
- i. Have been properly filed as provided by form instructions either before the expiration date shown on the face of the EAD, or during the filing period described in the applicable FR notice regarding procedures for obtaining Temporary Protected Status-related EADs;
- ii. Be based on the same employment authorization category as shown on the face of the expiring EAD, or be for an individual approved for Temporary Protected Status whose EAD was issued under the applicable regulations found in 8 C.F.R. 274a.12(c)(19); and
- iii. Be based on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding the expiration of the EAD and be based on an employment authorization category that does not require the USCIS to adjudicate an underlying application or petition before adjudication of the removal application (this includes aliens granted Temporary Protected Status described in 8 C.F.R. 274a.12(a)(12) and pending applicants for Temporary Protected Status who are issued an EAD under 8 C.F.R. 274a.12(c)(19)). The USCIS may make announcements to this effect on its website.
First, please see the relevant section of this article for the categories that 8 C.F.R. 274a.13(d) currently applies to [see section]. Provided that the EAD is in a category that falls under the new rule, the primary requirements are that the applicant have timely filed his or her renewal application and that the new application was in the same qualifying category as the original EAD (with a limited exception for certain Temporary Protected Status-related EAD applicants discussed later in the article).
Under 8 C.F.R. 274a.13(d)(2), any extension authorized under 8 C.F.R. 274a.13(d)(1) will be subject to any applicable terms, conditions, and limitations that were noted in the preceding employment authorization.
8 C.F.R. 274a.13(d)(3) addresses when the 180-day extension will be terminated. Under the provision, the extension will terminate either up to 180 days after the expiration of the previous EAD, or upon issuance of a notification of a decision regarding the application for renewal of the EAD, whichever date is earliest. Furthermore, the DHS may, within its discretion, otherwise terminate any employment authorization, EAD, or any extension of employment authorization.
Under 8 C.F.R. 274a.13(d)(4), an EAD that has expired on its face will not be considered unexpired if it is combined with a Form I-797C, Notice of Action, which shows that the requirements for the automatic extension set forth in 8 C.F.R. 274a.13(d)(1) have been met.
At 82 FR 82456, the DHS disagreed with concerns that eliminating the 90-day processing time requirement for Forms I-765 “will cause gaps in employment, undue hardship, job losses, or longer adjudication times.” The DHS explained that, despite doing away with the regulatory requirement, the USCIS “continues to be committed to the processing goals it has established for the Form I-765.” Specifically, at 82 FR 82458, the DHS stated that it “plans to maintain current processing timeframes and will continue to post that information on its Web site.” Additionally, in 82 FR 82456, DHS stated that many of those who benefitted from the 90-day processing rule will now benefit from the automatic EAD extensions. Additionally, the DHS took the position that eliminating the 90-day rule “will also support USCIS's existing practice regarding concurrent filing of EAD applications based on underlying immigration benefits” (using VAWA self-petitioners as an example).
The DHS also noted that EAD applicants who are not eligible for the automatic 180-day extension of their old EADs may still contct the USCIS's National Customer Service Center if their Form I-765 has been pending for more than 75 days. Renewal applicants who benefit from the 180-day extension of their preexisting EAD may contact the National Customer Service Center after day 165 of the 180-day extension of the preexisting EAD. Please see our full article on the subject to learn more [see article].
The USCIS Fact Sheet provides detailed guidance regarding the new provision for automatic extensions of certain EADs, including the specific renewal categories that are eligible.
First, the Fact Sheet lists the EAD categories that are eligible for the automatic extension as of April 10, 2017 [link for list of categories]:
- A03 - Refugee
- A05 - Asylee
- A07 — N8 or N9
- A08 — Citizen of Micronesia, Marshall Islands, or Palau
- A10 — Withholding of deportation or removal granted
- C08 — Asylum applicant
- C09 — Pending adjustment of status under section 245 of the INA
- C10 — Suspension of deportation applicants (filed before April 1, 1997); cancellation of removal applicants; and cancellation of removal applicants under NACARA
- C16 — Creation of record (adjustment of status based on continuous residence since January 1, 1972)
- C20 — Section 210 legalization (pending Form I-700)
- C22 — Section 245A legalization (pending Form I-687)
- C24 — LIFE legalization
- C31 — VAWA self-petitioners with approved Form I-360
- A12 — Temporary Protected Status granted
- C19 — Certain Temporary Protected Status applicants determined by the USCIS to be eligible for Temporary Protected Status on the face and who may receive an EAD as a “temporary treatment benefit” under 8 C.F.R. 244.10(a)
Please note that EADs issued under the Deferred Action for Childhood Arrivals (DACA) Program are not automatically extended under the new 8 C.F.R. 274a.13(d). The only EADs that may be automatically extended are those issued in the categories on the above list.
In order to benefit from the automatic extension, an employee must have an EAD in one of the above categories eligible for the extension. Additionally, the employee must timely file a renewal application in the same category (A12 and C19 are considered the same category for purposes of 8 C.F.R. 274a.13(d)). To establish employment eligibility to an employer, the employee must present his or her expired EAD along with the Form I-797C showing that the renewal application was timely file in the same qualifying category as the expiring EAD. This combination will constitute an unexpired EAD provided that the USCIS did not otherwise end the extension period as provided in 8 C.F.R. 274a.13(d)(3).
The Fact Sheet offers the following guidance to new employees seeking to benefit from the new EAD automatic extension provision when filling out Section 1 of the Form I-9. Such employees should:
- Select the option “An alien authorized to work until”; and
- Enter the date that is 180 days from the “card expires” date of his or her EAD as the “employment authorized until mm/dd/yyyy” date.
The Fact Sheet states that current employees should:
- Cross out the “employment authorized until” date in Section 1;
- Write the date that is 180 days from the date his or her current EAD expires; and
- Initial and date the change.
To start, employers must determine whether the documents presented by an employee appear to be legitimate.
In determining whether the individual is eligible for an extension of employment authorization, the employer must determine whether the original EAD is in a category eligible for the extension. The employer must determine if the Form I-797C presented by the employee or potential employee shows that the extension request was filed in the same eligible category (please note again that A12 and C19 are considered the same category). The employer must then determine whether the extension request was timely filed and whether the old EAD expired less than 180 days before this assessment by the employer.
The Fact Sheet notes that some category codes may include the letter “P.” For purpose of determining whether an employee or potential employee's employment authorization has been automatically extended, employers should disregard the letter “P” when comparing the category code on the EAD with that on the Form I-797C.
The Fact Sheet makes clear that an automatic extension is not considered reverification of employment authorization. Therefore, employers using the Form I-9 should not complete Section 3 of the Form I-9 until the 180-day extension period has ended or until the employee presents a new document that shows that he or she continues to be authorized for employment, whichever transpires sooner.
At the end of the 180-day extension period, the employer will be required to reverify the employee's employment authorization in Section 3 of the Form I-9. In order to establish continued eligibility for employment at the end of the 180-day extension period, the employee must present an acceptable document from List A or List C, or an acceptable List A or List Ce receipt, as described in the Form I-9 instructions.
The Fact Sheet provides detailed instructions for employers filling out the Form I-9. Employers enrolled in E-Verify may create a case in E-Verify for a new employee using information provided on the Form I-9 from the Form I-797C. The Fact Sheet explains that the receipt number entered as a document number on the Form I-9 should be entered into the document number field in E-Verify.
Certain individuals on Temporary Protected Status may be eligible for automatic EAD extensions if there is an announcement of such in the Federal Register. Such individuals may be eligible for continued employment after the expiration of an old EAD by virtue of the Federal Register notice or the new rule.
The new rule described in this article does away with the USCIS's requirement that it adjudicate all EAD applications within 90 days and supplants it, in part, with the new automatic 180-day extension period. An individual who may benefit from the extension should file the EAD renewal application as soon as possible within the current filing window.
When dealing with immigration forms and adjudications, it is wise to seek guidance from an experienced immigration attorney if there are any questions. Regarding the new rule, an experienced immigration attorney may offer guidance on how the extension works and on ensuring that an individual is employment authorized under the new rule.