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Employment Authorizations: New Automatic Extension Rule

blog12.pngAs part of one of the final immigration rules promulgated by the Obama Administration, employment authorization will be automatically extended for certain visa categories when a renewal is properly filed.

Under the rule, "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers," which went into effect on January 17, 2017, foreign nationals who apply for a renewal of their preexisting employment authorization in the same category will automatically receive an extension of their authorization for up to 180 days even without having received a new Employment Authorization Document (EAD). This rule applies to those who are applying for renewal in the same, following categories:

  • A03 - Refugees

  • A05 - Asylees

  • A07 - N8 or N9

  • A08 - Citizen of Micronesia, Palau, or Marshall Islands

  • A10 - withholding of deportation or removal granted

  • C08 - Asylum Applicants

  • C09 - Adjustment of Status Applicants

  • C10 - Cancellation of Removal/NACARA Applicants

  • C16, C20, C22, C24

  • C31 - VAWA Applicants with approved I-360, and

  • A12 or C19 - TPS

For example, if you are an Asylum Applicant (C08) and you received your initial EAD on February 10, 2016 with an expiration date of February 10, 2017, while your case is still pending, so long as you apply for an EAD renewal before February 10, 2017, you will receive an automatic extension on your initial EAD for 180 days or until August 9, 2017.

USCIS has issued a Fact Sheet regarding this matter, along with instructions for employers on how to account for these changes. Essentially so long as the employee has a copy of their expiring/expired EAD and an I-797 Receipt Notice showing that the renewal was timely filed, there should be no issues with I-9 compliance.

Practitioners should be sure to file the renewal application in advance of the EAD expiration so that clients can receive their I-797 Receipt Notice prior to the EAD expiration and not have gaps in employment.

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