Gunster's immigration law practice

Among the many provisions of a USCIS regulation titled, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” that was effective on January 17, 2017 was an amendment to existing regulations providing for automatic extensions of the validity periods of certain Employment Authorization Documents (Forms I-766) for up to 180 days. Since this provision has resulted in several inquiries, we are publishing USCIS’ FACT SHEET guidance regarding its implementation of this provision.

The FACT SHEET states that eligibility for the automatic extension depends on the following requirements:

  1. The employee must have timely filed an application to renew her or his EAD, meaning that the application was received by USCIS before the EAD expired (except certain employees granted Temporary Protected Status (TPS) who must follow the applicable TPS Federal Register notice), and the application remains pending;
  2. The eligibility category on the face of the EAD is the same eligibility category code on the Form I-797C, Notice of Action, that the employee received from USCIS indicating USCIS ‘s receipt of the EAD renewal application (except employees with TPS who may have either A12 or C19 as the category code); and
  3. The renewal application was filed on the basis of a qualifying eligibility category code. As of the date of publication [of the FACT SHEET, which was January 30, 2017], eligibility category codes for a 180-day automatic extension are A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31 and A12 or C19. Note: Some category codes on the EAD may include the letter ‘P’ such as C09P. Employers should disregard the letter ‘P’ when comparing the category code on the EAD with the category code on the receipt notice. [These categories have not been expanded since January 30, 2017.]

The employee’s expired EAD in combination with Form I-797C showing that the EAD was timely filed and showing the same qualifying eligibility category as that on the expired EAD, is an acceptable document for Form I-9, Employment Eligibility Verification. Such document combination is considered an unexpired EAD under List A.

With respect to employees relying on the automatic extension under the new rule, employers should note that an employee who is a TPS beneficiary may have an EAD with a category code of A12 or C19. The category code on Form I-797C can also be either A12 or Cl9. These two codes are the ONLY codes that are interchangeable and should be considered identical by employers. Additionally, the FACT SHEET states that TPS beneficiaries may be eligible for an automatic extension of their EAD if there is an announcement in the Federal Register that provides for such an automatic extension, or by satisfying the requirements of the new regulation.

The FACT SHEET also provides guidance for completion of the Form I-9 for situations involving EAD extensions pursuant to this regulation.

View the USCIS’ Fact Sheet regarding Automatic Extensions for EADs now.

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