Q&A: Understand USCIS extended employment authorization – Technologist

Question: An employee’s Employment Authorization Document (EAD), Form I-766, has expired and they say they haven’t received a new card but they applied for renewal and their work authorization has been automatically extended. How can we tell whether they’re still eligible to work for purposes of updating the Form I-9?

Answer: Start by reviewing the information the employee provided. The original EAD should have a code indicating what category U.S. Citizenship and Immigration Services (USCIS) has assigned to them. For example, A12 is a category for Temporary Protected Status (TPS) and C08 is a category for asylees. Once you know the category, you should be able to find information about whether the employee’s eligibility has been automatically extended.

Next ask whether they received a USCIS document verifying receipt of their application for renewal of their work authorization and providing an extension. If so, that document may say that their status has been automatically extended for a specified period. If the USCIS notice provides an extension of 540 days, you can rely on that (although if the USCIS ultimately denies the application, the denial will cut that period short). If the USCIS notice indicates that the automatic extension is for only 180 days, you will need to do a little digging to see whether the figure is actually 540 days. On May 4, 2022, and April 4, 2024, USCIS issued two separate regulations that temporarily replace the 180-day extension with a 540-day extension in many cases.

Here are some USCIS webpages you can check, if the USCIS documents described above don’t give a clear answer. For each category, you should pay close attention to the dates of eligibility and the documentation (if any) required. These webpages include:

Tips: When asking for any I-9 information, remember to give the employee a copy of the Form I-9 List of Acceptable documents, as well as the instructions for the form, so the employee is free to choose what documents to provide. The latest version is dated 08/01/23 and is available here. For more information, see our Legal Guide, At a Glance: Form I-9.