Limited 180-Day EAD Extension Rule

 

The U.S. Department of Homeland Security final rule, "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled Nonimmigrant Workers," published at 81 FR 82398 (November 18, 2016), took effect on January 17, 2017 (see NAFSA's trending issue page on this rule).

One part of this final rule amended 8 CFR 274a.13(d) to provide that employment authorization is automatically extended for up to 180 days beyond the expiration the current employment authorization document (EAD) of a limited group of individuals who have applied for an extension of their EAD.

STEM OPT extensions continue to be valid for 180 days under a separate regulation

We would like to clarify right at the beginning that neither the benefits nor the limitations of this new 180-day EAD extension rule apply in any way to the 180-day period during which STEM OPT applicants can continue working for up to 18 months beyond their standard OPT EAD expiration date while their STEM OPT I-765 is pending. The STEM OPT 180-day period is based on separate authority at 8 CFR 274a.12(b)(6)(iv), and continues unchanged by this new rule.

Eligibility for the new 180 EAD extension benefit

This final rule amended 8 CFR 274a.13(d) to provide that employment authorization is automatically extended for up to 180 days beyond the expiration an eligible applicant's current EAD. To be eligible for the new 180-day benefit, an EAD extension applicant must meet all of the following conditions:

  • Timely filing. The applicant properly files Form I-765 requesting an extension of employment authorization before the expiration date of their current EAD (or, in the case of extending a TPS EAD, during the filing period specified in the relevant TPS notice);
  • Same category. The application is for an extension of employment authorization in the same employment authorization category indicated on the face of the applicant's current EAD; and
  • The applicant must "continue to be employment authorized incident to status beyond the expiration of the EAD or are applying for renewal under a category that does not first require the adjudication of an underlying benefit request." DHS has determined, however, that only the following 15 employment authorization categories potentially qualify for this benefit:
  1. Aliens admitted as refugees (see 8 CFR 274a.12(a)(3));
  2. Aliens granted asylum (see 8 CFR 274a.12(a)(5));
  3. Aliens admitted as parents or dependent children of aliens granted permanent residence under section 101(a)(27)(I) of the INA, 8 U.S.C. 1101(a)(27)(I) (see 8 CFR 274a.12(a)(7));
  4. Aliens admitted to the United States as citizens of the Federated States of Micronesia, the Marshall Islands, or Palau under agreements between the United States and those nations (see 8 CFR 274a.12(a)(8));
  5. Aliens granted withholding of deportation or removal (see 8 CFR 274a.12(a)(10));
  6. Aliens granted Temporary Protected Status (TPS) (regardless of the employment authorization category on their current EADs) (see 8 CFR 274a.12(a)(12) and (c)(19));
  7. Aliens who have properly filed applications for TPS and who have been deemed prima facie eligible for TPS under 8 CFR 244.10(a) and have received an EAD as a "temporary treatment benefit" under 8 CFR 244.10(e) and 274a.12(c)(19);
  8. Aliens who have properly filed applications for asylum or withholding of deportation or removal (see 8 CFR 274a.12(c)(8);
  9. Aliens who have filed applications for adjustment of status under section 245 of the INA, 8 U.S.C. 1255 (see 8 CFR 274a.12(c)(9));
  10. Aliens who have filed applications for suspension of deportation under section 244 of the INA (as it existed prior to April 1, 1997), cancellation of removal under section 240A of the INA, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (see 8 CFR 274a.12(c)(10));
  11. Aliens who have filed applications for creation of record of lawful admission for permanent residence (see 8 CFR 274a.12(c)(16));
  12. Aliens who have properly filed legalization applications pursuant to section 210 of the INA, 8 U.S.C. 1160 (see 8 CFR 274a.12(c)(20));
  13. Aliens who have properly filed legalization applications pursuant to section 245A of the INA, 8 U.S.C. 1255a (see 8 CFR 274a.12(c)(22));
  14. Aliens who have filed applications for adjustment of status pursuant to section 1104 of the LIFE Act (see 8 CFR 274a.12(c)(24)); and
  15. Aliens who are the principal beneficiaries or qualified children of approved VAWA self-petitioners, under the employment authorization category "(c)(31)" in the form instructions to the Application for Employment Authorization (Form I-765).

As you see, only a few of the categories eligible for the 180-day EAD extension benefit are encountered frequently in the context of higher education. For example:

  • Applicants for adjustment of status to lawful permanent residence who apply to renew their adjustment-based EAD under 8 CFR 274a.12(c)(9) do benefit from the 180-day EAD extension rule

What kind of EAD work authorizations do not qualify for the 180-day extension?

Many other EAD-based employment authorization categories are ineligible for the 180-day benefit, since they are not included in the list of 15 categories. For example, the following EAD renewal applications frequently encountered in higher education do not benefit from the 180-day extension provision:

  • Renewal of J-2 work authorization under 8 CFR 274a.12(c)(5)
  • Renewal of H-4 work authorization under 8 CFR 274a.12(c)(26)
  • Renewal of any of the F-1 EAD-based employment authorizations under 8 CFR 274a.12(c)(3), such as:
    • F-1 international organization work authorization
    • F-1 standard off-campus work authorization based on economic necessity,
    • F-1 special student relief off-campus work authorization
     
  • Applications for STEM OPT
    • But, as stated above, STEM OPT applicants can continue working for up to 18 months beyond their standard OPT EAD expiration date while their STEM OPT I-765 is pending. The STEM OPT 180-day period is based on separate authority at 8 CFR 274a.12(b)(6)(iv), and continues unchanged by this new rule.
     

Practice notes

In the preamble to the final AC21 rule at 81 FR 82398, 27540, DHS states:

"DHS recognizes the possibility of gaps in employment authorization for renewal applicants who are not included on the list of employment categories eligible for automatic renewal of their EADs because they require adjudication of an underlying benefit request. Such individuals are encouraged to contact the National Customer Service Center (NCSC) if their application is pending for 75 days or more to request priority processing of their application."

DHS also notes that effective January 17, EAD renewal applicants can file their renewal applications up to 180 days in advance of the expiration of their current EAD. This 180-day pre-filing period does not apply to F-1 OPT or STEM OPT applicants, however, as they are bound by a separate regulation which limits their pre-filing eligibility period to 90 days. For more information, see NAFSA's Practice Note, 180-day-in-advance EAD renewal filing policy does not apply to OPT applications.

For the employment authorization categories that do qualify for the 180-day extension benefit, under 8 CFR 274a.2(b)(1)(vii) the employee and the employer can rely on the following documentation for I-9 purposes:

The expired EAD in combination with a copy of the I-797 receipt notice (Form I-797C Notice of Action), indicating:

  • the timely filing of the application to renew the EAD
  • the same employment authorization category as that listed on the expiring or expired EAD, except in the case of TPS beneficiaries