How to Update Form I-9 for Employees with an Existing 180-Day Automatic Extension
In the face of longer-than-expected processing times for renewed employment authorization documents (EADs), causing some foreign nationals to have their evidence of work authorization expire before the new one is received, the U.S. Citizenship and Immigration Services (USCIS) issued a new rule extending the validity of timely filed renewal applications (Form I-765) for certain categories of EADs.
The 2017 rule made certain EAD categories eligible for an automatic 180-day extension of the EAD from the expiration date on its face.
On May 4, 2022, in the face of exorbitant wait times for renewed EADs, USCIS issued a temporary rule that increased this automatic extension period by 360 days, for a total maximum extension of 540 days from the expiration date on the face of the EAD.
This 540-day extension rule is intended to be temporary. Eligible I-765 renewal applications filed after October 26, 2023, will only receive the normal 180-day extension.
Do employers need to update their records for Form I-9s recording just a 180-day extension now?
Employers do not have to rush to check their records and apply the 540-day extension. The extension update simply needs to be made before the previously recorded 180-day extension expires. Employers will already be using the initial extension expiration date to track the date by which new documentation needs to be reverified. Any reverification of temporary work authorization must happen prior to expiration of the previously reviewed document. Therefore, employers can easily address this update through their normal reverification process.
How do employers update the Form I-9 for forms previously recorded with the 180-day extension?
Employers must update the Form I-9 prior to the date the original 180-day extension expires. Employers are not required to re-examine the documents; however, it is permissible for the employees to present their expired card and proof of eligible extension to confirm eligibility and properly calculate the additional 360-day extension. For paper forms, this is not something completed as a reverification, but rather an update to the existing documentation. (Use a new Section 3 for new documentation. For extensions of an existing document, update the expiration date – either as a change to the “document expiration date” or as a note of “EAD Ext” and the new expiration date in the “Additional Information” field. You may keep a copy of the USCIS Webpage describing the extension. For online I-9s, please check with your application provider to confirm their process for this new extension.
How do employers complete the Form I-9 for extended EADs for newly hired employees?
Employers may refer to the USCIS M-24 “Handbook for Employers” which provides specific guidance regarding how to complete the Form I-9 for new employees with automatic extensions of EADs that are expired on their face.