USCIS Announces New Employment Authorization Policy For H-4, L-2, And E Spouses

Under a settlement in a lawsuit filed by the American Immigration Lawyers Association and its litigation partners, U.S. Citizenship and Immigration Services (USCIS) is implementing new policies regarding work authorization for nonimmigrant H-4 and L-2 spouses. USCIS issued a memorandum on November 12, 2021 to update its Policy Manual to implement the new rules, and also expanded similar benefits to E spouses.

Under the new policy guidelines, H-4, L-2, and E nonimmigrant dependent spouses will receive an automatic extension of employment authorization in certain circumstances. In addition, L-2 and E dependent spouses will be issued I-94 records that permit employment “incident to status.”

Automatic Extension of EADs for H-4, L-2, and E Spouses

Effective immediately, nonimmigrant H-4, L-2, and E spouses qualify for an automatic extension of their Employment Authorization Document (EAD) for 180 days when they file an application for EAD renewal so long as:

• Their I-765 application to renew the EAD is filed prior to the EAD expiration date; and
• The H-4, L-2, or E spouse has an unexpired I-94 showing valid underlying nonimmigrant status.

For employment verification purposes on Form I-9, the nonimmigrant spouse may present all of the following as evidence of work authorization:
Unexpired Form I-94 showing valid H-4, L-2, or E nonimmigrant status;
• Expired EAD; and
• Form I-797C (Notice of Action/Receipt) for Form I-765, showing a timely-filed EAD renewal application in the (a)(17),       (a)(18), or (c)(26) categories.

The automatic extension of the EAD will remain valid until:
• The spouse’s underlying Form I-94 expires; or
• 180 days have passed since the prior EAD expired; or
• USCIS adjudicates the I-765 extension application, whichever comes first.

It is important to note that the automatic extension of the EAD for H-4, L-2, and E spouses will only apply only to those who have an I-94 document showing valid underlying H-4, L-2, or E status after their EAD expires. This means that a spouse whose current H-4, L-2, or E status has already expired and whose Form I-539 to extend their H-4, L-2, and E status is pending with USCIS cannot take advantage of the automatic EAD extension. This will limit the immediate benefit of the automatic EAD extension for many spouses, due to very lengthy processing times for I-539 applications to extend H-4, L-2, and E statuses. It may be possible in certain cases where the principal spouse holds valid H-1B, L-1, or E status for the dependent spouse to travel abroad and reenter the U.S. (after obtaining a new H-4, L-2, or E visa stamp, if required). By reentering the U.S., the dependent spouse will be issued a new I-94 based on the expiration date of the principal spouse’s status.

L-2 and E Spouses Will be Employment Authorized Incident to Status

USCIS also clarified in its November 12, 2021 memorandum revising the Policy Manual that it considers L-2 and E dependent spouses to be employment authorized “incident to status.” This means that upon admission to the U.S. in L-2 or E status as a dependent spouse and issuance of a valid I-94 document upon entry, or issuance of a valid I-94 document by USCIS showing L-2 or E spousal status after a request for an extension or change of status, L-2 and E nonimmigrant spouses will automatically be authorized to work without the need to apply for an EAD. This rule applies only to L-2 and E spouses. It does not apply to H-4 spouses, or H-4, L-2, or E dependent children.

The Department of Homeland Security (DHS) will immediately take steps to modify Form I-94 to distinguish L-2 and E dependent spouses from dependent children. Once these systemic changes to the Form I-94 have been made, a new Form I-94 issued with the spousal annotation by USCIS through an approval of an extension of stay request filed on Form I-539 or by CBP through a new U.S. entry will serve as evidence of employment authorization as a List C document for Form I-9 employment verification eligibility purposes. An L-2 or E spouse with a Form I-94 that does not bear the new spousal annotation cannot use their Form I-94 as a List C document on Form I-9 and must present an EAD for employment authorization purposes. (It remains unclear if DHS will establish a procedure for L-2 or E spouses to request correction or re-issuance of their Form I-94 to add the spousal annotation.)

McCown & Evans will continue to monitor the implementation of these policy changes and will provide further updates as additional information is released.