I-9 Alert: Automatic Extensions of EADs

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Due to the new High-Skilled Workers rule that went into effect on January 17, 2017, USCIS is no longer required to adjudicate EADs within ninety days. To help prevent a gap in employment authorization, DHS will grant automatic 180-day EAD extensions in most categories if filed on the same basis as the initial EAD.

Here is what you need to know about these new regulation. 

How long does USCIS have to adjudicate an I-765 EAD application?

Previously, USCIS was required to adjudicate applications within ninety days. However, the new rule eliminates this requirement. The agency still intends to adjudicate applications within the ninety-day timeframe, but it is no longer required. Since they had trouble fulfilling this ninety-day timeframe even when it was a requirement, we anticipate that we will continue to see delays.

How can I help prevent a gap in employee’s work authorization?

DHS will grant automatic 180-day extensions in most categories if filed on the same basis as the initial EAD. Eligible categories also include refugees, asylees, individuals granted withholding of deportation/removal, TPS recipients, and individuals with pending I-485 applications.

You may file 180 days in advance of the EAD expiration. However, USCIS will publish on their website how far in advance you will be allowed for particular categories depending on operational considerations, so it is possible you may not be able to file that far ahead of time in the future.

This automatic EAD extension does not apply to all classes of foreign nationals eligible for EADs.  For example:  L-2 spouses and qualifying H-4 spouses are not covered.

It is also important to note that the automatic extension ceases immediately if the I-765 is denied.

How do I re-verify an employee who received an automatic EAD extension?

You are still required to re-verify the employee no later than the expiration of the EAD. Acceptable documentation for an automatic extension includes the expired EAD and the receipt notice with a statement that the original EAD is extended up to 180 days. You will need to re-verify after the 180-day mark.

What if an employee’s case is not adjudicated after 180 days?

You can call the National Customer Service Center if an application is pending for seventy-five days or more without adjudication or if an employee is into the automatic extension and pending at 165 days without adjudication.

You can find more guidance on the new EAD rule on the USCIS site here.