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USCIS to Implement New Policy on H-4, L-2, and E Spouse Work Authorization

30 Nov

U.S. Citizenship and Immigration Services (USCIS) announced on November 12, 2021 that it has changed its policy related to work authorization for spouses of H-1B, L-1, and E visa holders.

Under the Immigration and Nationality Act and USCIS regulations, spouses of L-1 and E visa holders and certain H-1B visa holders have been authorized to apply for work authorization in the United States. USCIS adjudication times for these applications for Employment Authorization Documents (EAD cards) have continued to lengthen over the past two years. It currently takes many months, and often longer than a year, to secure an EAD card.

The change in USCIS policy regarding spousal work authorization should reduce the impact of these lengthy adjudication times in many application circumstances by permitting continuing work authorization in some extension cases and recognizing “work authorization incident to status” for L and E spouses.

The new policy will: 

  • Permit the spouses of L and E nonimmigrants to work without having to apply for an Employment Authorization Document. Instead, USCIS will recognize “work authorization incident to status,” but employers will need to wait for employees to be issued an I-94 Arrival/Departure Record indicating their status as an L-2 or E spouse in order to properly complete the Form I-9 Employment Eligibility Verification process. In such cases, the annotated I-94 record with spousal indication will serve as a List C document for purposes of Form I-9 completion. Until the U.S. Department of Homeland Security makes changes to the I-94 for L and E spouses, employers will need to rely on the EAD as evidence of work authorization.
  • Under certain circumstances, allow for automatic extension of existing EADs for certain H-4, L and E dependent spouses, who timely file for EAD renewals so that they can continue working while the EAD renewal application is pending. Work authorization for H-4, L-2 and E spouses will continue until the earlier of the Form I-94 expiration date, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD. 

USCIS guidance now provides that eligible E, L-2, and H-4 dependent spouses may present the following combination of documents to employers for Form I-9 purposes: Form I-94 indicating the unexpired nonimmigrant status (E, L-2 or H-4), Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and the facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).

Employment authorization for H-4 spouses is not “incident to status” and is not applicable to all H-4 spouses. Only H-4 spouses whose H-1B spouse has an approved I-140 Immigrant Visa Petition or is eligible to extend H-1B status based on AC-21 extension eligibility may apply for work authorization.

USCIS recognition of employment authorization incident to status for L-2 and E spouses will eliminate the wait time after admission to the United States before the spouse is eligible to work. Further, the L-2 and E spouses should not experience gaps in work authorization when there is a gap in EAD validity due to lengthy USCIS adjudication times. While L-2 and E spouses no longer need to apply for employment authorization, USCIS confirms they may do so if they wish.

Unfortunately, because the extension of work authorization for H-4 nonimmigrants renewing their EAD cards is limited, in some circumstances H-4 spouses may often still experience difficulties associated with lengthy USCIS EAD adjudications, including gaps in employment authorization. In some cases, it may be possible to reduce these impacts through filing strategy.

H-4, L-2 and E applicants who need to extend their status and/or renew their EAD card should contact their Foster immigration attorney for a consultation to discuss next steps at least six months in advance of EAD expiration. L-2 and E spouses should consult their Foster attorney to discuss the timing and feasibility of travel outside the United States to obtain a new I-94 card with a spouse annotation that would serve as evidence of work authorization.

Foster will continue to monitor USCIS policy changes impacting on immigration status and work authorization and will make future updates available via the Foster website at www.fosterglobal.com