A new rule in the federal register has temporarily increased the automatic extension period for Employment Authorization Documents ("EADs") for asylum seekers and others from 180 days to 540 days. The 540-day extension applies to anyone with a pending EAD renewal, even those whose EAD and 180-day extension have already expired. This means that all asylum seekers with timely-filed renewals are able to work lawfully for 540 days beyond the expiration date on their current EAD card.

Starting on May 4, 2022, EAD receipts for certain categories--including c-8, asylum pending--will list the 540-day extension on the receipt itself. USCIS has also updated its website to reflect that EAD receipts listing the 180-day extension have been extended by an additional 360 days, to 540 days total. USCIS will not be sending out new receipts, and so if you need proof of the automatic extension for your employer or the DMV, you can show them this web page. In order to qualify for the automatic extension, you must file to renew your current EAD before it expires.

USCIS has neatly explained the reasoning behind this extension--

Operational challenges, exacerbated by the emergency measures USCIS employed to maintain its operations through the height of the COVID-19 pandemic in 2020, which greatly affected operations and staffing, combined with a sudden increase in Form I-765 filings, have resulted in processing times for Form I-765 increasing to such a level that the 180-day automatic extension period for Form I-765 renewal applicants’ employment authorization and/or EADs is temporarily insufficient. For some applicants, the extension has already expired, while for many others, it is in imminent danger of expiring. As a result, renewal applicants are losing their jobs and employers suddenly are faced with finding replacement workers during a time when the U.S. economy is experiencing more job openings than available workers.

DHS has determined that it is imperative to immediately increase the automatic extension period of employment authorization and/or EADs for eligible Form I-765 renewal applicants for a temporary period. This temporary increase to the automatic extension period will avoid the immediate harm that otherwise would affect tens of thousands of EAD renewal applicants and their U.S. employers in those cases where USCIS is unable to process applicants’ EAD renewal applications before the end of the current 180-day automatic extension period.

USCIS is already taking steps to more permanently address its backlogs for EAD applications and other form types, and this temporary increase will provide a temporary extension while USCIS works to return to pre-pandemic processing times.

In other words, USCIS is processing EAD renewals too slowly and in order to prevent people from losing their jobs, it will temporarily increase the automatic extension period to 540 days. This should benefit noncitizens as well as their employers. Without the additional time, USCIS has estimated that as many as 375,000 people would lose their EADs in the next 18 months. I am actually surprised this number is so low, given that nearly 800,000 people are waiting in the affirmative asylum backlog, 1.7 million people have cases in Immigration Court (probably the majority are asylum seekers), and many other people have EADs based on categories that qualify for the new 540-day extension. Regardless, it's clear that many tens of thousands of people will benefit from this new rule.

USCIS has also announced some additional positive developments related to asylum-pending EADs.
  • All asylum seekers are eligible to apply for their EAD after 150 days (not 365 days), unless they cause a delay in processing by missing an interview or a biometrics appointment.
  • Asylum seekers do not have to pay the $85 biometric fee when they apply for an EAD, so the total fee is (currently) $410. If you send the fee + the biometric fee, USCIS may reject your application.
  • Asylum seekers do not need to answer questions on the I-765 about whether they entered the U.S. lawfully through a point of entry. According to USCIS, "You are no longer barred from receiving employment authorization based on your asylum application if you entered or attempted to enter the United States between ports of entry. Therefore, you do not need to answer Questions 30b.–g. on Form I-765."
  • "Asylum seekers who file asylum applications after the 1-year filing deadline are no longer barred from receiving an EAD based on a pending asylum application."
  • Asylum seekers who committed certain criminal acts or who have certain convictions are no longer barred from obtaining an EAD. However, people who have been convicted of an aggravated felony are still ineligible for an EAD.
  • Also, the "30-day processing requirement has been reinstated for initial employment authorization requests based on a pending asylum application." If this actually goes into effect as promised, USCIS will process initial EAD applications for asylum seekers within 30 days.

For those who already have EADs and who are denied asylum, the EAD will no longer be immediately invalidated. It will remain valid for 60 days after asylum is denied. This is presumably to allow the applicants time to wrap up their affairs and depart the United States in an orderly way.

For those who are denied asylum at the Board of Immigration Appeals and who file a petition for review in a federal court, they are now permitted to renew their EAD while the petition is pending. Until now, such people were usually unable to renew their EADs, which made it more difficult to challenge a BIA decision in federal court.

Keep in mind that to obtain an EAD based on asylum pending, you have to wait 180 days after the I-589 is filed (the law requires you to wait 180 days before USCIS can issue the EAD, though you are permitted to file the I-765 after 150 days). If you cause a delay in your case by postponing the interview or missing an appointment, it will delay or stop the "Asylum Clock," which could prevent you from getting an EAD. Also, if you move and this causes your case to transfer to a different Asylum Office, this may be considered applicant-caused delay, which could prevent you from receiving an EAD (once you have reached 180 days on the Clock, any delay you cause has no effect on EAD eligibility).

Also, for those renewing their EADs, remember that to benefit from the 540-day automatic extension, you must file to renew your EAD before it expires. The soonest you can file to renew is 180 days before the old card expires (do not file earlier than that, as USCIS will likely reject the application).

It is nice to have some good news to report, and these change will help many people. Thank you to USCIS for addressing this important need!

Originally posted on the Asylumist: www.Asylumist.com