New Work Authorization Rules for E and L Spouses and Certain H-4 Spouses

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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:

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E and L Spouses
Will Now Be Work-Authorized Incident to Status

Under the new USCIS policy, E and L spouses will be employment-authorized by virtue of their immigration status, and will no longer be required to request employment authorization by filing an I-765 application for an employment authorization document (EAD).  In the last several years, continuously increasing processing times for EAD applications and EAD renewal applications have created a frustrating situations for many families, with E and L  spouses unable to secure employment for many months after arriving in the United States or losing their ability to work while waiting for the USCIS to process their EAD renewal applications.

 

Under the new policy, the USICS will take steps to modify Form I-94 for E and L spouses to evidence employment authorization as a List C document of Form I-9. However, until the new Form I-94 has been issued, E and L spouses 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.  Under the terms of the settlement, the USCIS is required to work with Customs & Border Protection (CBP) to update Form I-94 to identify E and L spouses in order to serve as a List C document within 120 days of the November 10 settlement. Note that after the Form I-94 is updated, an E or L spouse may, if they wish, request an EAD reflecting their work authorized status.

 

In the meantime, the USCIS its changing 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 if they have an unexpired Form I-94 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) 180 days from the expiration of the current EAD. 

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What This Means for E and L Spouses Now

The USCIS policy change making E and L spouses work authorized incident to status became effective immediately on November 12, 2021, but until the Form I-94 is updated and 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. 

Exceptions

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).

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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. Long processing times for these renewal applications over the past several years have created hardships for applicants and their employers when H-4 spouses have been required to stop working while the USCIS takes months to process their cases. The policy change seeks to address this problem.

 

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) 180 days from the expiration of the current EAD.

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