Recent Changes in Employment Authorization

On Behalf of | Nov 8, 2023 | Immigration Law

USCIS announced a welcome increase in the validity period of employment authorization documents (EADs) for some categories of work permit. Some of the primary beneficiaries of this change are

– Refugees and asylees– Individuals granted withholding of removal– Applicants for asylum and withholding of removal– Applicants who have pending adjustment of status applications under INA sec. 245

People in these categories can expect a work permit validity of up to five years.

Unfortunately, not all EAD (work permit) changes are welcome. EADs are proof of employment authorization, but they have a limited validity period and must be extended. When the work permit expires, employment eligibility frequently expires with it. Some categories of work permit receive an automatic (but limited) extension of employment eligibility if the extension is filed before the expiration of the EAD. Prior to May 2022, this auto-extension period was limited to 180 days. If the employee’s work permit extension was not approved within 180 days of the prior EAD’s expiration, the company had to terminate employment. As USCIS processing times drastically increased, companies had to terminate employees to maintain I-9 compliance. The pervasiveness of this problem led USCIS to issue a temporary final rule increasing the length of auto-extension to 540 days. Unfortunately, that temporary final rule is expiring.

As of October 27, 2023, USCIS has reverted to the prior 180-day auto-extension period. Because USCIS processing times remain lengthy, there will be renewed challenges for both employers and employees. Individuals with affected EADs should file their extension request as early as possible to mitigate problems arising from this situation.

Check out our blog post “Is this the End of COVID Flexibility for I-9 forms?” for additional USCIS updates.

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