The Law Offices of Solow, Hartnett and Galvan celebrate the latest U.S. Citizenship and Immigration Services updated policy which provides structural changes for nonimmigrant H-4, L-2 and E dependent spouses suffering from long-delayed processing times for the processing of applications for employment authorization.
On November 12, 2021, USCIS updated its policy addressing the automatic extension of employment authorization for certain H-4, L-2, and E dependent spouses and eligible H-4 spouses of principal visa holders. This litigation successfully achieved the reversal of a previous 2002 USCIS Memorandum which did not permit dependent spouse E, L, or certain H-4 visa holders automatic work authorization in the United States. This new policy means that E, L, and H dependent visa holders will no longer be required to apply for employment authorization cards to evidence work authorization in the United States.
The updated policy also indicates that the employment authorization documents of H-4, L-2, and E dependent spouses will be among those eligible for an automatic 180-day extension if:
- The H-4, L-2, or E dependent spouse properly filed for a renewal of his or her EAD before it expired; and
- The spouse has an unexpired Form I-94 showing valid H-4, L-2, or E derivative status.
- The H-4, L-2, or E dependent spouse properly filed for a renewal of his or her EAD before it expired; and
- The spouse has an unexpired Form I-94 showing valid H-4, L-2, or E derivative status.
This automatic extension will terminate at the earliest of the below actions:
- The date of expiration of the nonimmigrant status, as indicated on the Form I-94;
- The approval or denial of the EAD renewal application; or
- 180 days from the date of the expiration of the prior EAD.
To complete Form I-9 with an expired EAD at the time of hire or at the time of required reverification, certain H-4, L-2, and E dependent spouses may present the following combination of documents to their employers to document this automatic extension of work authorization:
- A copy of the expired EAD, listing category A17, A18, or C26, as applicable;
- Form I-797 confirming receipt of the application for the renewal EAD in the same category as the expired EAD and that the renewal application was filed prior to the expiration of the EAD; and
- An unexpired Form I-94 reflecting H-4, L-2, or E derivative status, as applicable.
This new guidance also states that USCIS will consider L-2 and E dependent spouses (not H-4 dependent spouses) work-authorized incident to their status. However, USCIS indicated that a Form I-94 solely notated with “E-1,” “E-2,” “E-2C, “E-3,” “E-3D,” “E-3R,” or “L-2” is not sufficient evidence of employment authorization for Form I-9 at this time.
In its memorandum, USCIS also stated that it will collaborate with US Customs and Border Protection to modify I-94 form notations for E and L dependent spouses entering the US to streamline their eligibility for immediate access to employment in the US without the need to file for or obtain separate employment authorization documents. This is a great development for long-suffering spouses of skilled immigrant workers, most of whom also have advanced skills that can help the US economy and employers recover from the Covid-19 Pandemic.