Work Authorization Expanded for E, L and some H-4 Spouses

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One of the drawbacks of our current immigration system is that most spouses who accompany foreign workers are not allowed to work until they are well into the “green card” process. Often people spend years on temporary work visas and their spouses find that it is difficult to use their talents or meet people since they cannot work. This restriction is particularly galling during a tight labor market.

A few visas allow spouses to work, the most common being:

  • E for certain investors and those engaged in international trade

  • L for intracompany transferees.

  • Spouses of H-1B holders (professional workers), who hold H-4 status are allowed to work if the “green card” process has advanced to a certain point.

As helpful as this is, in recent years processing times for employment authorization documents (EADs) have become excruciatingly slow. Spouses must wait several months to initially receive EADs and often experience gaps in employment authorization when extending the EADs at the expiration because they can file no sooner than six months in advance.

On November 12, the U.S. Citizenship and Immigration Service (USCIS) announced a policy change regarding E, L, and some H-4 spouses’ work authorization. While USCIS recognizes the problem, the solution is less than ideal.

The new policy

The new policy includes two changes:

  1. Spouses in the E and L categories are recognized as authorized to work “incident to status,” meaning they are no longer required to obtain an EAD (subject to a caveat about documentation explained below).

  2. Spouses in the E, L, and H-4 categories extending existing EADs may be eligible for an automatic extension of work authorization upon filing in certain limited situations.

E and L work “incident to status”

Although a fair reading of the law allows E and L spouses to work in the U.S., the USCIS has taken the position for many years that an EAD is required. The new policy recognizes that E and L spouses do not need an EAD for work authorization. It allows them to continue to apply for EADs should they wish and provides a limited automatic extension of an expired EAD as described below.

Unfortunately, the policy does not stop there. Since USCIS is also the agency that promulgates the I-9 Employment Eligibility Verification form, the policy addresses what documentation will be considered sufficient to prove work authorization to an employer.

It states that an I-94 Arrival/Departure record showing E or L status may be used as a List C document for the I-9. To complete the I-9, the spouse would need to provide a List B identity document, such as a valid driver’s license or state-issued ID.

Because children in E or L status are not authorized to work, USCIS found it necessary to change the I-94 to indicate that the person offering this document is a spouse. This change must be made in conjunction with U.S. Customs and Border Protection (CBP), which issues I-94s upon arrival to the United States.

According to the new policy, until such change is made, the E or L I-94 should not be used as an I-9 document. This restriction may stem from concern over causing employers to ask for more or different documentation than required for the I-9, such as proof that the employee is a spouse of an E or L visa holder, in potential violation of the anti-discrimination rules, or it could simply be concern that an older child not slip through the cracks and work.

Given that children must be under 21 to hold E or L dependent status, the number of situations in which confusion could rein would be small. An employee’s birthdate is included on the I-94 and most List B documents.

How the U.S. Immigration and Customs Enforcement (ICE), the agency responsible for inspecting and fining on I-9 violations, will treat an employer that accepts an I-94 for an E or L spouse before the planned I-94 change is implemented remains to be seen, as this change will be confusing for all but the most diligent I-9 preparers.

Automatic 180-day extension

In many situations, USCIS has authorized a 180-day automatic extension of an expiring EAD if the extension application is timely filed. This policy has alleviated the concern about slow processing in these instances, although expedite requests are sometimes still needed to prevent gaps in employment.

Until recently, USCIS was required to decide on EAD applications in 90 days. In 2016 this rule changed to remove any adjudication timeline.

The new policy states that if the spouse files an EAD extension before the current one expires and has an I-94 that is valid for E, L, or H-4 status beyond the EAD expiration date, the EAD is automatically extended up to 180 days. Unfortunately, this helps few people.

In most situations, the spouse’s status and EAD expire at the same time. Only in an unusual situation, such as when the spouse’s I-94 is longer because of international travel, would the automatic extension arise. The language of the applicable regulation limits USCIS from providing a more robust automatic extension.

Because the automatic extension is limited to the date the I-94 expires, the date a decision on the extension is rendered or 180 days, whichever happens first, employers relying on it will need to monitor the progress of the application, which is not required for other automatic extensions.

Coincidental litigation victory

The policy change was announced two days after the settlement in Shergill, et al. v. Mayorkas, in which a federal court in Seattle ordered USCIS to implement the same changes for L and H-4 spouses. The new policy includes E spouses, which had been included in another lawsuit filed a few days before.

To be fair, USCIS had requested public input in April 2021 to identify barriers in benefits and service. The policy guidance cites response to this request as the basis for the change.

The new policy is another example of the power of both responding to agency requests for comment and litigation. Allowing E and L spouses to work incident to status will alleviate some of the processing backlog, which is the real solution to the H-4 EAD problem. If USCIS can return processing times to 90 days or approve H-4s and the related EADs simultaneously with H-1Bs, the automatic extension would not be necessary. However, if this policy is the first step in that direction, it is welcome.

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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