Automatic Work Authorization for E and L Spouses
and Certain H-4 Spouses
While it often seems that positive developments from the U.S. Citizenship & Immigration Services (USCIS) are few and far between, there have been some important and welcome changes regarding work authorization for spouses in E-1, E-2, L-2 and in certain cases, H-4 status. As a result of a significant settlement of a lawsuit with the Department of Homeland Security (DHS) on November 10, 2021, the USCIS took uncharacteristically quick action, issuing policy guidance on November 12, 2021 outlining these changes:
E and L Spouses
Are Now Work-Authorized Incident to Status
Under the new USCIS policy, E and L spouses are employment authorized by virtue of their immigration status once they have been issued an I-94 admission record on or after January 31, 2022 that has the new “S” designation described below. This means that E and L spouses are no longer required to request employment authorization by filing an I-765 application for an employment authorization document (EAD).
Under the new policy, an arriving E or L spouse should now be issued Form I-94 by U.S. Customs & Border Protection (CBP) that indicates the designation “S” after their status (for example, “E-2S”), which serves as a List C document in the I-9 verification or reverification process. Similarly, the USCIS is including the same designation in I-797 approval notices with I-94s issued for E and L spouses in connection with change or extension of status applications. Until an E or L spouse obtains such a new I-94 with this designation, they will continue to be required to show evidence of employment authorization in the form of an EAD during the I-9 verification and reverification process. Note that E and L spouses may, if they wish, continue to apply for and obtain EADs reflecting their work authorized status.
The USCIS also changed its interpretation of certain regulations as they apply to E and L spouses to provide for an automatic extension of employment authorization upon the filing of an EAD renewal application if the application is filed before the expiration date of the current EAD and they have an unexpired Form I-94 valid beyond the expiration date of their current EAD showing their status as an E-1, E-2 or L-2 nonimmigrant. In this case, the automatic extension will be valid until the earlier of (a) the end date on the Form I-94, (b) the approval or denial of the EAD renewal application or (c) 540 days from the expiration of the current EAD (for EAD renewal applications pending as of May 4, 2022 or filed through October 26, 2023. After October 26, 2023, the automatic extension period will revert to 180 days).
What This Means for E and L Spouses Now
These changes were implemented on January 31, 2022, and E and L spouses arriving from abroad or receiving I-797 approval notices from the USCIS for a change or extension of status should now receive I-94s with the letter “S” reflecting their status. If an E or L spouse was issued an I-94 prior to January 31, 2022 or is issued an I-94 without the new designation, such E or L spouse will still require an EAD unless and until they obtain a new I-94 with the new designation.
Because there has been some confusion and inconsistency in connection with the new policy implementation by CBP at ports of entry, we recommend that an arriving E or L spouse (particularly one arriving separately from their spouse upon whose employment the E or L visa is based) request admission as an E or L spouse and bring evidence of the marriage, specifically a copy of their spouse’s E or L visa and a copy of their marriage certificate, and verify their Class of Admission shortly after arrival (I-94s may be downloaded from CBP’s website here. If the admission does not reflect the “S” designation, they can seek to correct it within 30 days of arrival by contacting CBP at the port of entry here . They may be required to return to the port of entry for the correction.
Unless and until an E or L spouse receives a new Form I-94 reflecting their status as an E or L spouse, they still need to have a valid EAD or evidence of their timely filed EAD renewal application with their expired EAD and Form I-94 showing continued E-1, E-2 or L-2 status to work.
The new USCIS policy does not apply to spouses of E-2 Long-Term Investors in the Commonwealth of the Northern Mariana Islands (CNMI) or to dependents of E nonimmigrant employees of the Taipei Economic and Cultural Representative Office (TECRO) or the Taipei Economic and Cultural Offices (TECO).
Certain H-4 Spouses
Will Qualify for Automatic Extension of Employment Authorization
The USCIS policy changes also help H-4 spouses who are eligible to seek employment authorization. Although this category will not be work-authorized incident to status, the policy change provides for automatic extension of employment authorization upon the timely filing of an EAD renewal application.
As with the new policy for E and L spouses seeking renewals of their EADs, an H-4 spouse who files an EAD renewal application prior to the expiration of their current EADs and who has a Form I-94 showing their continued H-4 status, will now receive an automatic extension of work authorization until the earlier of (a) the end date on the Form I-94, (b) the approval or denial of the EAD renewal application or (c) 540 days from the expiration of the current EAD (for EAD renewal applications pending as of May 4, 2022 or filed through October 26, 2023. After October 26, 2023, the automatic extension period will revert to 180 days).
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