BREAKING: DHS ends automatic extension of Employment Authorizations

The U.S. Department of Homeland Security has announced an Interim Final Rule that ends automatic extensions for most Employment Authorization Document categories. The rule was published today, and will take effect immediately.

Foreign nationals who file to renew their Employment Authorization Documents on or after today (October 30) will no longer receive automatic extensions. The rule does not affect EADs that were automatically extended before October 30. There are also limited exceptions to the rule.

Previously, applicants in certain EAD categories, such as H-4 and L-2 EADs or those with pending green cards, could qualify for a 540-day automatic extension by timely filing with the U.S. Citizenship and Immigration Services before their current EADs expired. Certain categories, such as H-4, also required applicants to have a valid I-94 to qualify for an automatic extension.

These previous automatic extensions were granted to help avoid gaps in employment authorization caused by the lengthy adjudication process for EAD extensions.

Now, EAD automatic extensions will be granted only if protected by law or through a Federal Register notice for employment documentation related to Temporary Protected Status. Students in F-1 status who timely file for STEM OPT extensions still qualify for 180-day automatic extensions.

For most companies with sponsored foreign nationals, this will affect employees with EADs in H-4, E-3, and L-2 status, and those with EADs based on pending green card applications. Spouses in L-2 status still only need an I-94 with L-2S notation for work authorization and no longer need a physical EAD card.

More significant impacts are likely to come for non-sponsored employees, such as those in asylee or refugee status, who will no longer qualify for automatic extensions.

The earliest that applicants can file for EAD extensions remains 180 days before the current EAD expiration date. This means that when the USCIS takes more than 180 days to adjudicate EAD extensions, a gap in employment authorization will occur.

We expect litigation in response to this rule, and will continue to provide updates.