USCIS Issues Policy Alert Regarding Work Authorization for E, L-2, and H-4 Spouses

Kramer Levin Naftalis & Frankel LLP

In our Nov. 11 client alert, we described the dramatic and beneficial changes to the employment authorization rules affecting dependent spouses of certain nonimmigrant visa holders. On Nov. 12, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Alert broadening the scope of the changes we described to include E dependent spouses, in addition to H-4 and L-2 spouses. Below is a summary of the Policy Alert’s key provisions:

  • H-4, E or L-2 spouses who file timely I-765 applications to extend their H-4, E or L-2 EAD cards will receive an automatic extension of work authorization through the earliest date of the following: 180 days after the current employment authorization document (EAD) expires, the expiration date of their I-94 and the date their I-765 application is adjudicated. 
  • The following combination of documents suffices for I-9 purposes as proof of the automatic extension of the EAD: (1) valid Form I-94 showing current H-4, E or L-2 status; (2) Form I-765 Receipt Notice for a timely filed EAD renewal application stating “Class Requested” as “(a)(17),” “(a)(18)” or “(c)(26)”; and (3) the EAD card that has expired on its face and was issued under the same category as above.
  • E and L-2 spouses are employment authorized incident to their status and are no longer required to file Form I-765 to request employment authorization (although they may choose to do so if they want an EAD). USCIS and U.S. Customs and Border Protection will work together to modify the I-94 notations to distinguish E and L-2 spouses (who are work authorized incident to status) from E and L-2 children (who are not work authorized incident to status). Until USCIS implements changes to the I-94 to designate E and L-2 “spouse” status separately from children, E and L-2 spouses must still rely on an EAD (or automatic extension of the EAD per above) to prove their eligibility to work in the United States for I-9 purposes.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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