Update: In a Policy Memorandum dated November 12, 2021, USCIS has issued guidance on the implementation of the changes outlined below and has clarified that spouses of E visa holders will also benefit from the change in policy and will also be considered have automatic work authorization incident to status (meaning that they will no longer be required to apply for an EAD prior to working in the United States).
USCIS will be updating its interpretation and implementation of the applicable regulations to provide that certain H-4, E, or L dependent spouses who are applying for a renewal of their dependent H-4 EADs will now benefit from an automatic 180-day extension of their employment authorization during the pendency of standalone EAD renewal applications. In these cases, an applicant’s unexpired Form I-94, Form I-797C (Notice of Action) showing a timely-filed EAD renewal application, and facially expired EAD may be used as evidence of continued work authorization for Employment Eligibility Verification (Form I-9) purposes. The guidance also clarifies that the automatic extension will be valid until the earlier of: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD.
Moreover, USCIS has also confirmed that both E and L spouses will be considered to have automatic work authorization incident to status (meaning that they will no longer be required to apply for an EAD prior to working in the United States). USCIS will continue to issue E and L dependent spouses EADs and such EADs are acceptable for Employment Eligibility Verification (Form I-9) as List A documents (documents evidencing both employment authorization and identity). However, the Department of Homeland Security will immediately take steps to modify Forms I-94 evidencing nonimmigrant status issued to E and L dependent spouses and, once these changes are made, the revised Form I-94 will contain a notation indicating that the bearer is an E or L dependent spouse will be acceptable as evidence of employment authorization for I-9 purposes.
November 10, 2021
Today it was announced that Lawyers from the American Immigration Lawyers Association (AILA) reached a settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides meaningful relief to H-4 and L-2 nonimmigrants facing historic processing delays for dependent spousal work permits (also known as Employment Authorization Documents or EAD cards). We outline these new changes below.
H-4 Spouses Eligible for Automatic Extension of Employment Authorization
As a result of the settlement H-4 dependent spouses who are applying for a renewal of their dependent H-4 EADs will now benefit from an automatic extension of their employment authorization during the pendency of standalone EAD renewal applications. The settlement states that USCIS will have 120 days to amend H-4 EAD renewal receipt notices to reflect eligibility for the automatic extension of employment authorization.
L-2 Spouses Employment Authorized Incident to Status
Even more significantly the settlement provides more extensive relief to L-2 dependents who the United States Citizenship and Immigration Service (USCIS) now recognizes have automatic work authorization incident to status (meaning that they will no longer be required to apply for an EAD prior to working in the United States).
The settlement indicates that USCIS will issue policy guidance to reflect that L-2 dependents are now work authorized incident to status and, within 120 days, in cooperation with Customs and Border Protection (CBP), will make updates to Form I-94 for L-2 dependents to indicate that it can be used as a valid List C document to evidence employment authorization for purposes of Form I-9 employment verification.
Until those updates are made, the I-94 alone will be insufficient evidence of employment authorization but, like H-4 spouses, L-2 spouses with pending EAD renewals will be eligible for an automatic extension of employment authorization based on a timely filed renewal application.
The settlement agreement indicates that USCIS will have 120 days to implement these changes and we are awaiting additional guidance regarding how individuals with pending H-4 and L-2 EAD applications will be impacted in the interim. We will continue to update this post as more information becomes available.