Published on November 15, 2021
On November 12, 2021, USCIS issued policy guidance which allows for the automatic extension of employment authorization for certain H-4, E, and L-2 nonimmigrant dependent spouses. Specifically, the new policy states that individuals in H-4, E, and L-2 status will now qualify for the automatic extension of their Employment Authorization Document (EAD) if they filed an application to renew their H-4, E, or L-based EAD prior to expiration, and they possess an unexpired Form I-94 evidencing their valid H-4, E, or L-2 status. Employment authorization will be automatically extended until the expiration of the dependent spouse’s status, the approval or denial of the pending EAD renewal application, or 180 days from the date of expiration of the previous EAD, whichever is earlier.
Further, USCIS will now consider E and L-2 dependent spouses to be employment authorized incident to their valid E or L-2 nonimmigrant status. This means that individuals in valid E (including E-3D and E-2D) and L-2 status will be eligible to work in the U.S. pursuant to their valid status and I-94 admission record, without filing an application for employment authorization with USCIS. To help implement this new policy, DHS will update the Forms I-94 issued to E and L dependent spouses so that they may be used as an acceptable List C document for purposes of Form I-9 employment eligibility verification. Until USCIS is able to update the Form I-94, E and L dependent spouses may need to request an EAD through the Form I-765 application process to meet current Form I-9 requirements. USCIS will continue to process and issue EADs for E and L dependent spouses who file Form I-765, Application for Employment Authorization.
Accordingly, dependent spouses in H-4, E, and L status with timely filed EAD renewal applications may provide the following documentation as evidence of employment authorization: (1) Form I-94 evidencing valid H-4, E, or L-2 dependent status; (2) Form I-797C receipt notice for a timely-filed EAD renewal application that indicates that the EAD category requested on the application was “(a)(17) Spouse of an E nonimmigrant”, “(a)(18) Spouse of an L nonimmigrant”, or “(c)(26) Spouse of an H-1B nonimmigrant”; and (3) the expired EAD issued under the same (a)(17), (a)(18), or (c)(26) category. Once DHS updates the Form I-94 to distinguish Forms I-94 issued to spouses of E and L nonimmigrants, E and L dependent spouses will be permitted to work without a valid EAD or pending EAD application.
This policy is effective immediately.
The attorneys at Ryan Swanson welcome this exciting new development in response to lengthy delays in the processing of EAD applications for individuals in H-4, L-2 and E status. If you have questions about the impact of this settlement on your case, please reach out to the Immigration Attorneys at Ryan Swanson.