View Rule

On May 4, 2022, DHS published a temporary final rule (TFR) to temporarily amend existing Department of Homeland Security (DHS) regulations to provide that the automatic extension period applicable to expiring Employment Authorization Documents (Forms I-766 or EADs) for certain renewal applicants who have filed Form I-765, Application for Employment Authorization, will be increased from up to 180 days to up to 540 days from the expiration date stated on their EADs. This increase applied or applies to certain eligible renewal applicants with pending Forms I-765 as of May 4, 2022, including those applicants whose employment authorization may have lapsed following the initial 180-day extension period, and any eligible applicant who filed a renewal Form I-765 during the 540-day period beginning on or after May 4, 2022, and ending October 26, 2023. DHS again published a TFR on April 8, 2024, to temporarily increase the automatic extension period from up to 180 days to up to 540 days from the expiration date stated on their EADs. The expanded automatic extension time, totaling up to 540 days, will generally be available to those EAD renewal applicants normally eligible for the 180-day automatic extension and who have a pending EAD renewal application between Oct. 27, 2023, and Sept. 30, 2025, the end of a 540-day period that begins with the rule’s publication in the Federal Register. DHS is considering public comments received and evaluating the need for future action.

Statement of Need:

DHS temporarily amended its regulations on May 4, 2022, and April 8, 2024, to temporarily increase the automatic extension period for the EADs of certain renewal EAD applicants from up to 180 days to up to 540 days. The purpose of these two TFRs was to help prevent qualifying renewal EAD applicants from experiencing a lapse in their employment authorization and documentation. DHS is considering public comments received on the April 8, 2024, TFR.

Summary of the Legal Basis:

The Secretary of Homeland Security's (Secretary) authority for the regulatory amendments made in this TFR are found in various sections of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101 et seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135 (codified in part at 6 U.S.C. 101 et seq.). General authority for this rulemaking is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws and establish such regulations as the Secretary deems necessary for carrying out such authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary and authorizes the Secretary to issue regulations.

Further authority for this TFR is found in: Section 208(d)(2) of the INA, 8 U.S.C. 1158(d)(2), which authorizes the Secretary to grant employment authorization to applicants for asylum if 180 days have passed since filing an application for asylum; section 214 of the INA, 8 U.S.C. 1184, including section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which authorizes the Secretary to prescribe, by regulation, the time and conditions of the admission of nonimmigrants; Section 244(a)(1)(B) of the INA, 8 U.S.C. 1254a(a)(1)(B), which states that the Secretary shall authorize employment and provide evidence of employment authorization for noncitizens who have been granted Temporary Protected Status; section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), which recognizes the Secretary's authority to extend employment authorization to noncitizens in the United States; and section 101(b)(1)(F) of the Homeland Security Act, 6 U.S.C. 111(b)(1)(F), which establishes as a primary mission of DHS the duty to ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.

Anticipated Costs and Benefits:

The April 8, 2024 Temporary Final Rule (TFR) resulted in average stabilization of earnings worth $29.1 billion to employment-authorized immigrants, average cost savings of $5.2 billion to U.S. employers from avoided labor turnover, and is expected to yield an average of $3.1 billion in employment tax transfer payments over a 5-year period of analysis using a 2 percent discounting rate. While the EAD end dates are known to USCIS and can be used to accurately project lapses, there is uncertainty around the monetized, economic impacts due to the timing of EAD renewal filing behavior and the resulting duration of lapses experienced by workers of varying wages in the absence of the TFR.