As of January 17, 2017, the U.S. Citizenship and Immigration Services (USCIS) has implemented a new EAD automatic extension for certain EADs. While the automatic extension provision is a welcome relief to many foreign nationals who depend on EADs for documentation of employment eligibility, the new regulation carves out this benefit only to certain employment authorization categories.
The automatic extension takes place if a renewal EAD is not received before the current EAD expires and lasts for a period not to exceed 180 days, provided that the renewal application is:
- Properly filed with USCIS before the expiration date shown on the face of the expiring EAD,
- Based on the same employment category shown on the face of the expiring EAD, and
- Falls into one of the following fifteen eligibility categories:
| Eligibility Category Code |
Description |
| (a)(3) | Refugee |
| (a)(5) | Asylee |
| (a)(7) | Aliens admitted as parents or dependent children of aliens granted permanent residence |
| (a)(8) | Citizen of Micronesia, Marshall Islands, or Palau |
| (a)(10) | Withholding of Deportation or Removal Granted |
| (a)(12) | Temporary Protected Status (TPS) Granted |
| (c)(8) | Asylum Application Pending |
| (c)(9) | Pending Adjustment of Status under Section 245 of the Act |
| (c)(10) | Suspension of Deportation Applicants (filed before April 1, 1997) Cancellation of Removal Applicants Special Rule Cancellation of Removal Applicants Under NACARA |
| (c)(16) | Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972) |
| (c)(19) | Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”. |
| (c)(20) | Section 210 Legalization (pending I-700) |
| (c)(22) | Section 245A Legalization (pending I-687) |
| (c)(24) | LIFE Legalization |
| (c)(31) | VAWA Self-Petitioners |
USCIS has provided the following guidance on how employers and employees should complete Form I-9 when this automatic 180-day period takes effect, but they have not yet made any statements on whether an individual will be able to renew an expired driver’s license based on this same principle.
Instructions for an Employee Completing Section 1 of Form I-9
If you are a new employee:
When completing Section 1, new 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 their EAD as the “employment authorized until mm/dd/yyyy”
If you are a current employee:
Current employees whose employment authorization was automatically extended should:
- Cross out the “employment authorized until” date in Section 1;
- Write the date that is 180 days from the date their current EAD expires; and
- Initial and date the
Instructions for Employers Completing Section 2 of Form I-9
If your employee is new and presents an automatically extended EAD that is still within the 180-day extension period:
When completing Section 2, the employer should:
- Enter into the “Expiration Date” field the date upon which the automatic extension period expires, not the expiration date on the face of the expired The automatic extension expiration date is the date 180 days from the “card expires” date on the EAD; and
- Enter the receipt number in the “Document Number” Note that this expiration date may be cut short if the employee’s renewal application is denied before the 180-day period expires.
If your employee is currently working for you:
For a current employee, update Section 2 of Form I-9 with the new expiration date as follows:
- Draw a line through the old expiration date and write-in the new expiration date;
- Write EAD EXT in the “Additional Information” field of Section 2; and
- Initial and date the
The new expiration date the employer should enter is the date 180 days from the “card expires” date, which is the date on the face of the EAD.
Note: This is not considered a reverification; do not complete Section 3 until either the 180-day extension has ended or the employee presents a new document to show continued employment authorization, whichever is sooner. At the end of the 180-day extension, the employer must reverify the employee’s employment authorization in Section 3 of Form I-9.
Instructions for Employers Completing Section 3 of Form I-9
When the automatic extension of an EAD expires, an employer must reverify the employee’s employment authorization in Section 3. At that time, the employee must present any document from List A or any document from List C, or an acceptable List A or List C receipt described in the Form I-9 Instructions to reverify employment authorization. Note that employers may not specify which List A or List C document employees must present.
For E-Verify Employers
An employer may create a case in E-Verify for a new employee using the information provided on Form I-9 from Form I-797C. The receipt number entered as the document number on Form I-9 should be entered into the document number field in E-Verify.
Our office is happy to assist any employers or employees who may have questions about this new policy and we will provide updates regarding driver’s licenses and other things impacted by this as they come out in the coming months.
