By Jason Fry
On May 4, 2022, the Department of Homeland Security (DHS) published a temporary rule (87 FR 614) that temporarily increases the automatic extension period to up to 540 days for employment authorization and/or Employment Authorization Documents (EAD, Form I‑766) available to certain applicants who have filed Form I‑765, Application for Employment Authorization, renewal applications. This rule also provides eligible noncitizens with a pending renewal application:
An additional up to 360‑day extension if their EAD is still covered under the 180‑day automatic extension, for a total of up to 540 days past the “Card Expires” date of the current EAD; or
An additional period and resumption of employment authorization and/or EAD validity if their 180‑day extension has lapsed, for up to 540 days past the “Card Expires” date of the current EAD.
Amy Peck, a Principal in the Immigration Practice Group of Jackson Lewis, offers the following suggestions.
For new hires or rehires completing new I-9s:
In Section 1 of the Form I-9, the new hire should list the extended expiration date of work authorization.
In Section 2, the employer should list the EAD card under List A.
The employer should list the receipt number from the I-797C in the document number field.
In the expiration date field, the employer should enter the date 540 days from the “card expires” date on the EAD. This should match the date the employee entered in Section 1.
The employer should enter “EAD EXT” in the Additional Information field.
For existing employees eligible for the 540 day extension whose employment authorization is unexpired as of May 4, 2022 (the date the rule is effective), USCIS guidance indicates that either Section 2 or Section 3 may be used. USCIS guidance indicates that Section 2 may be amended to update the expiration date by entering “EAD EXT” and the auto-extension date (EAD expiration + 540 days).
For reverification in Section 3 for an existing employee, the same details should be applied:
Document Title: Employment Authorization Card
Document Number: Receipt number from the I-797C.
Expiration Date: Expiration shown on the EAD + 540 days
If an employee had been terminated due to a lapse in employment authorization and is now being rehired, the employer should apply its policy relating to I-9s for rehires. If the employer completes new I-9s for all rehires, a new form should be completed. If the employer uses Section 3 for rehires when possible, the employer should determine whether the rehire is taking place within 3 years of original I-9 completion. If so, Section 3 can be completed as noted above, with the addition of the rehire date. If the rehire is more than 3 years after original I-9 completion, a new Form I-9 is required.
Form I-9 rules and regulations can be confusing, and frequently change. You don’t have to go it alone. If you are looking for assistance with managing I-9s for your organization, take a look at our I-9 Management suite of services, or contact us to learn more.
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