SUMMARY | On November 10, 2021, the U.S. Department of Homeland Security entered into a settlement with plaintiffs, significantly changing USCIS policy regarding work authorization for qualified H-4 and L-2 status holders. On November 12, 2021, USCIS updated its Policy Manual to reflect these changes.
IMMEDIATE CHANGES FROM USCIS | As of November 12, 2021
- USCIS considers E-1, E-2, E-3, and L-2 dependent spouses to be employment authorized incident to status. [1]
- E and L dependent spouses, therefore, are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD.
- E and L dependent spouses are issued an Arrival-Departure Record (Form I-94) by USCIS or U.S. Customs and Border Protection (CBP). A form I-94 solely notated with “E-1,” “E-2,” “E-2C,” “E-3,” “E-3D,” “E-3R,” or “L-2” nonimmigrant status is insufficient to evidence employment authorization.
- The EAD of an E and L dependent spouse, and employment authorization and EAD of an H-4 dependent spouse, will be automatically extended for a period of up to 180 days if they have properly filed an Application for Employment Authorization (Form I-765) for a renewal of their E, L, or H-4 dependent spouse-based EAD before the current EAD expired, and the dependent spouse has an unexpired Form I-94 indicating valid E, L, or H-4 derivative status.
- With the following document combination, the expired EAD is considered unexpired and acceptable as evidence of identity and employment authorization for completion of Employment Eligibility Verification (Form I-9):
- Facially expired previous EAD stating Category A17, A18, or C26, as applicable;
- A Notice of Action (Form I-797C) for Form I-765 with Class requested in the same category as the expired EAD (either “(a)(17),” “(a)(18),” or “(c)(26),” as applicable), and showing that the renewal application was filed before the EAD expired; and
- An unexpired Arrival-Departure Record (Form I-94) reflecting H-4, E, or L derivative status, as applicable.
- The automatic extension will terminate with the earliest of any of the following events: the end of the validity period of the nonimmigrant status, as shown on the Form I-94; when there is an approval or denial of the application to renew the previous EAD using Form I-765; or 180 days from the date of the expiration of the previous EAD. Reverification of employment authorization is required at the end of the automatic extension period.
- With the following document combination, the expired EAD is considered unexpired and acceptable as evidence of identity and employment authorization for completion of Employment Eligibility Verification (Form I-9):
FUTURE CHANGES | USCIS and CBP are working to reflect these changes on Form I-94 so as to distinguish E and L dependent spouses from E and L dependent children. When the new code and notation are implemented, Forms I-94 for E or L dependent spouses may constitute as evidence of employment authorization.
Erickson Immigration Group will continue to share updates as more news is available. If you have questions about anything we’re reporting above or case-specific questions, please contact your EIG attorney.