Perspective: Kirton McConkie Law Blog

Employer Client Alert - February 2017

On February 2, 2017, the American Immigration Lawyers Association (AILA) issued the following practice alert entitled “Automatic Extensions of EADs Under ‘High-Skilled’ Final Rule.”

On December 14, 2016, AILA asked SCOPS [U.S. Citizenship and Immigration Services’ (USCIS’) Service Center Operations Directorate] to clarify new 8 CFR §274a.13(d), which took effect on January 17, 2017 and provided that the filing of a renewal EAD application will automatically extend employment authorization for up to 180 days for certain EAD types. On the call, SCOPS told AILA that the automatic extension would apply only to Forms I-765 filed on or after January 17, 2017.

However, on January 31, 2017, SCOPS informed AILA that the new automatic extension provisions at 8 CFR 274a.13(d) apply to Form I-765 renewal applications pending on the effective date of January 17, 2017 and I-765 renewal applications filed on or after the effective date of January 17, 2017. The renewal categories eligible for the new automatic extension will be posted on the USCIS website. For properly filed renewal I-765s under one of the listed categories filed prior to and pending on January 17, 2017 and filed on or after January 17, 2017, the 180-day auto extension begins on the date the current EAD expires.

To avoid potential gaps in employment authorization resulting from unexpected delays in processing, USCIS is also changing its recommended filing timelines and will accept renewal EAD applications filed as far in advance as 180 days from the expiration date of the current EAD. USCIS is currently working on revising its web pages to reflect this new recommended filing period for I-765 renewal applications. USCIS advised AILA that it recognizes that delayed processing times create challenges for applicants and their families, and remains committed to working to provide applicants with an adjudicative response to each employment authorization request.

SCOPS confirmation that it will apply the recent changes to U.S. immigration regulations and automatically extend EADs for qualifying applicants whose I-765 renewal applications were filed on or after the new rule’s effective date of January 17, 2017 comes as good news.  Many skilled foreign nationals working lawfully in the U.S. now will not risk losing their employment authorization due to USCIS’ processing delays.

Also, USCIS now will accept EAD renewal applications as far in advance as 180 days from the expiration date of the current EAD.  In the past, USCIS would not accept EAD renewals filed more than 120 days in advance of the EAD’s expiration date.

Therefore, employers should take the following actions in light of SCOPS’ recent clarification:

  1. Docket foreign workers’ EAD renewal applications 180 days prior to expiration, and
  2. Re-verify EAD renewals on Form I-9 in accordance with USCIS’ “Fact Sheet” published on January 30, 2017 and available online at https://www.uscis.gov/sites/default/files/USCIS/Verification/I-9%20Central/FactSheets/Fact-Sheet-AutoExtendEAD.pdf.

When completing I-9 forms for foreign workers’ who qualify for the automatic EAD extension, USCIS provides the following instructions for both employees and employers:

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” date.

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 change.

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 EAD. 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” field. Note that this expiration date may be cut short if the employee’s renewal application is denied before the 180-day period expires.

To determine if an EAD is auto-extended for 180 days, you need to:

  • Check the category code on the EAD and make sure it is in one of these categories: A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, and A12 or C19.
  • Check the “received date” on Form I-797C and make sure it is on or before the “card expires” date on the EAD.
  • Make sure the category code on the EAD is the same category code on Form I-797C. Employers should consider category codes A12 and C19 to be the same category code.