On January 30th, Senator Joseph Kennedy introduced a Joint Resolution aiming to rescind a Biden administration rule that increased the automatic extension for work authorization for certain foreign nationals who requested renewal of their employment authorization document (EAD), but whose applications were not decided by USCIS prior to the expiration of the EAD. If rescinded, this joint resolution will have a significant impact on foreign nationals and employers.
By way of background, the Congressional Review Act provides a procedure for Congress to overturn regulations issued by the Executive Branch. The CRA requires that both houses of Congress pass a resolution disapproving the rule and the President must sign the bill; the CRA provides that the resolution is not subject to the Senate’s filibuster process which requires 60 votes to advance most legislation in the Senate. As of this writing, the Joint Resolution on this rule has been referred to the Senate Judiciary Committee, which has not yet acted on it. The White House has, we understand, been requesting that the Senate advance the Joint Resolution.
The rule in question is a Final Rule published by the Department of Homeland Security (DHS) on December 13, 2024. The Final Rule permanently increased the automatic extension period for certain EADs from 180 to 540 days while the EAD renewal is pending. The Final Rule went into effect on January 13, 2025. The chart below summarizes the rules published on the U.S. Citizenship and Immigration Services website, capturing the categories of EAD applicants who are eligible for an automatic extension of their EAD under the Final Rule.
| EAD Categories Eligible for Auto-Extension | Length of Auto-Extension |
| A03: Refugee; A05: Asylee; A07: N-8 or N-9; A08: Citizen of Micronesia, Marshall Islands, or Palau; A10: Withholding of Deportation or Removal Granted; C08: Asylum Application Pending; C09: Pending Adjustment of Status under Section 245 of the Act; C10: Suspension of Deportation Applicants (filed before April 1, 1997), Cancellation of Removal Applicants, Special Rule Cancellation of Removal Applicants Under NACARA; C16: Creation of Record (Adjustment Based on Continuous Residence since Jan. 1, 1972); C20: Section 210 Legalization (pending I-700); C22: Section 245A Legalization (pending I-687); C24: LIFE Legalization; C31: VAWA Self-Petitioners | Up to 540 days |
| A12: Temporary Protected Status (TPS) Granted; C19: USCIS determined applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit” | Up to 540 days (See USCIS TPS page USCIS Temporary Protected Status page for further requirements on eligibility) |
| A17: Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status; A18: Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status; C26: Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status | Up to 540 days, or expiration date on I-94, whichever is sooner |
The permanent increase was a critical effort to address significant backlogs in EAD adjudications at U.S. Citizenship and Immigration Services (USCIS), the government agency that processes EADs. According to a USCIS spokesman last year when the Biden administration rule was introduced, there were approximately 800,000 EAD applications expected in the period beginning March 2024 and ending March 2026.
The Biden Administration made the 540-day period permanent to prevent lapses in employment authorization as a result of long delays in the processing of EAD applications.
Key impacts if the joint resolution becomes law:
- Longer processing times, which are anticipated in the new administration, will result in longer adjudication times for EAD renewal applications.
- Gaps in employment as a result of lengthier processing times of EAD renewals– employers need to proactively address the potential business disruptions to their business due to lapses in employees’ work authorization and any impact to entire teams, manufacturing lines, seasonal goals, etc.
- Gaps in employees’ driver’s license validity, if they are unable to provide to state DMV officials, required valid documentation of identity and authorized presence in the U.S. Employers and employees should also keep in mind any potential impacts to employees’ drivers license Real ID compliancy due to gaps in validity of drivers license in states currently requiring Real ID compliant driver’s licenses.
Below are our recommendations for Employers to help avoid or mitigate the potential disruption of processing delays and negative consequences of employment authorization gaps:
- Employers should adjust their I-9 practices, including setting reminders for reverifying their employees’ work authorization at the appropriate time. An increase in I-9 inspections is anticipated under President Trump’s administration. Employers should keep in mind that reverifications are often one of the first areas inspected to determine an employer’s overall technical compliance and substantive compliance.
- Employers should set reminders 7-9 months in advance of EAD expirations and ensure employees are aware and ready to file EAD renewals as soon as they are eligible, in most cases 6 months in advance of expiration.
- Employers should remind employees to attend the first scheduled biometrics appointment (a requirement in most EAD renewal applications) in order to avoid a delay in the adjudication of an EAD renewal application. Employers should also encourage employees to update their addresses with USCIS (on Form AR-11) so they do not miss correspondences from USCIS with important case updates such as the receipt and approval notice, biometrics appointment notice, potential Request for Evidence, the issued Employment Authorization Document card upon approval of the EAD renewal application. The EAD card is necessary for reverifying the employees’ work authorization. Finally, employers should also note that if the EAD renewal is filed online, employees (or their attorney who filed the renewal on their behalf) should receive an electronic I-797, Receipt Notice immediately after filing, which is available for download on their USCIS account.
- Employers should proactively point employees to the appropriate government website for information on the Form I-765, Application for Employment Authorization required for an EAD renewal (note that for certain categories of EAD applicants, further filings are necessary). The USCIS website for the Form I-765 includes information on filing locations, filing fees, and other requirements as needed to prepare and submit EAD renewal applications.
- For employees whose employment authorization has expired and they are not eligible for the automatic extension and are therefore unable to provide required updated work authorization documentation, employers should ensure their policies are clear on the appropriate actions that should be taken to ensure the business is staying compliant to immigration laws. Human Resources should follow those policies to act consistently with regards to employees in those circumstances – whether it is to put them on paid or unpaid leave, or termination. Please note, termination is the most conservative approach and employers should discuss with their counsel the risks of either of those approaches.
Employers should monitor further developments in this area with their Klasko attorney and consider any other support they may provide for their employees, including offering consultations with immigration counsel and directing employees to legal services providers that may have reliable self-help tools for preparing EAD applications.
If you have any questions or concerns about the content of this alert, please contact one of our immigration attorneys.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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