Form I-9 Guidance Related to Certain Forms I-797C, Notices of Action with Incorrect Automatic EAD Extension Information

Between May 4 and June 2, 2022, USCIS issued certain Forms I-797, Notices of Action (receipt notices for Form I-765 applications) with incorrect information. In particular, the incorrect notices included language relating to an up to 180-day automatic extension for certain categories of EAD renewal applicants, instead of the correct 540-day automatic extension provided by the temporary final rule effective May 4, 2022 (Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants (87 FR 26614)).  USCIS printed corrected notices, with language confirming the 540-day automatic extension, for affected applications. Affected applicants should have received a corrected receipt notice by the third week of June.

For employees that meet all automatic EAD extension eligibility requirements, the employer must accept the employee's Form I-797C, Notice of Action, referring to an automatic EAD extension of up to 180 days when presented with their EAD that appears expired on the face of the card as a List A document. Follow the below guidance for Form I-9 completion. 

New Employees

New employees presenting an EAD that has been automatically extended with the Form I-797 referring to 180 days must complete Section 1 as follows:

• Select "An alien authorized to work until;" and
• Enter the date 540 days from the "Card Expires" date on the EAD as the expiration date of employment authorization.
• Employees whose status does not expire, such as refugees or asylees, should enter N/A as the expiration date.
• For employees in EAD category codes A17, A18 or C26, this date may not exceed your Form I-94 expiration date.

In Section 2, the employer must:

• Enter EAD in the Document Title field.
• Enter the receipt number from Form I-797C, Notice of Action, in the Document Number field.
• In the Expiration Date field, enter the date up to 180 days* from the "Card Expires" date on the EAD.
• The employer should enter EAD EXT in the Additional Information field.

If the employee presents their Form I-797C, Notice of Action, referring to an up to 540-day automatic extension, and the employer had entered an EAD expiration date based on the up to 180-day extension, employers must:

• Calculate the new EAD expiration date by adding up to 360 days* to the EAD expiration date.
• Enter the new EAD expiration date in the Section 2 Additional Information field.

Current Employees

For a current employee whose employment authorization and/or EAD has been automatically extended and who presents a Form I-797C, Notice of Action, referring to an automatic EAD extension of up to 180 days you must enter the up to 180-day* automatic extension expiration date in the Section 2 Additional Information field.

If the employee presents their Form I-797C, Notice of Action, referring to an up to 540-day automatic extension, and the employer had entered an EAD expiration date based on the up to 180-day extension, employers must add an additional up to 360 days* to the EAD expiration date and enter the new date in in the Section 2 Additional Information field.

* There are automatic extension limitations on employees who file a Form I-765 renewal application within categories A17, A18, and C26. See A17, A18, and C26 guidance provided in Section 4.4 of the M-274 for more information.

For more information visit the USCIS Automatic Employment Authorization Document (EAD) Extension page.