On November 12, 2021, USCIS updated its Policy Manual to permit H-4, E and L nonimmigrant dependent spouses to receive automatic extension of employment authorization in certain circumstances. Earlier in the week, USCIS announced that it would implement new policies for H-4 and L spouses within 120 days. In updating its Policy Manual, USCIS moved quickly to implement the new polices and to expand the benefits to E spouses.
AUTOMATIC EXTENSION OF EADS – H-4, E and L Spouses
Effective immediately, nonimmigrant H-4, E and L spouses qualify for an automatic extension of their Employment Authorization Document (EAD) when they file to renew their EAD provided:
- The I-765 application to renew the EAD is filed prior to the EAD expiration date and
- The H-4, E or L spouse has an unexpired I-94showing valid underlying nonimmigrant status.
For purposes of Form I-9 employment verification purposes, the nonimmigrant spouse may present the following as evidence of work authorization:
- Unexpired Form I-94 showing valid H-4, E or L-2 nonimmigrant status;
- Facially Expired EAD; and
- Form I-797C (Notice of Action/Receipt) showing a timely filed I-765 EAD renewal application
The automatic extension of the EAD is valid until:
- Expiration of the underlying Form I-94;
- 180 days from the prior EAD expiration; or
- Adjudication of the I-765 extension application, whichever comes first.
L AND E SPOUSES – EMPLOYMENT AUTHORIZED INCIDENTAL TO STATUS
USCIS also clarified that it will consider L and E dependent spouses to be employment authorized incidental to their status. This means that upon admission and issuance of a valid I-94 document showing L-2 or E spousal status, E and L nonimmigrant spouses will automatically be authorized to work without the need to apply for an EAD. This applies only to E and L spouses. It does not apply to H-4 spouses or H-4, E or L dependent children.
The Department of Homeland Security (DHS) will immediately take steps to modify Forms I-94 to distinguish E and L dependent spouses from dependent children. Once changes to the Form I-94 are made, the new Form I-94 with the spousal annotation will serve as evidence of employment authorization as a List C document for Form I-9 employment verification eligibility purposes. Only a Form I-94 annotated as an L-2 or E “spouse” may serve as evidence of employment authorization. An L or E spouse with an I-94 that does not bear the new spousal annotation must also present an EAD for employment authorization purposes.
Gibney will continue to monitor implementation of the policies, and will provide updates.
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