Overview
Recent changes to US immigration policies and interpretations regarding employment eligibility should reduce uncertainties and delays for dependent spouses in the H-4, L-2, and E visa categories. The changes, which arise from a litigation settlement, are important and address two categories: i) employment authorization incident to status; and ii) 180-day automatic Employment Authorization Document (EAD) extensions. Spouses in the L-2 and E categories qualify for both of these changes. Work-authorized H-4 spouses qualify only for the 180-day EAD extension.
Employment Authorization Incident to Status: L-2 and E Spouses
Under the new policies, L-2 and E spouses are recognized as being “employment authorized incident to status.” This means that spouses in the L-2 and E categories are permitted to work in the US based solely upon their status. This differs from the prior interpretations and policy which required that these spouses separately obtain EADs in order to work in the United States. These individuals will remain eligible to request EADs, but will not be required to do so as a condition of employment eligibility.
Timing: Document Changes Needed for Form I-9 Compliance
The policy changes are effective as of September 12, 2021. However, while the policy recognizes the employment authorization of L-2 and E spouses, these individuals cannot take full advantage of this benefit, as of this writing. The reason for this implementation delay is that changes are needed in order to provide eligible individuals with a document which will comply with the Form I-9, Employment Eligibility Verification, requirements.
The US Citizenship and Immigration Services (USCIS) has to take steps to change the language used in L-2 and E spousal Form I-94 Arrival/Departure notices to identify work authorized individuals. The USCIS is coordinating with US Customs and Border Protection (CBP) in this effort, as CBP issues the Form I-94s evidencing status at the time of admission to the United States. These changes will distinguish L-2 and E spouses, who are work authorized, from L-2 and E dependent children, who are not eligible for this benefit.
Automatic 180-Day EAD Extensions: H-4, L-2 and E Spouses.
The second policy change is a 180-day automatic extension of an individual’s EAD validity based upon a timely filed request for EAD extension. These provisions are applicable to L-2 and E spouses, as well as work-authorized H-4 spouses. However, as explained below, this benefit is limited to the validity of the individual’s Form I-94. Thus, in many cases, this will restrict the additional time, if any, available under the automatic extension. This is particularly the case for individuals who process their status extension requests from within the United States.
Automatic Extension Requirements
Eligibility for an automatic extension of an approved EAD card for H-4, L-2 and E spouses requires:
- An approved EAD in a specified H-4, L-2 or E category;
- A timely-filed EAD renewal application requesting the same qualifying category; and,
- An unexpired Form I-94 with a validity which is longer than the approved EAD.
- The expiration of the status shown on Form I-94;
- The adjudication of the EAD renewal application; or
- 180 days from expiration of the currently approved EAD.
- an expired EAD in one of the qualifying categories;
- a receipt notice verifying a timely filed EAD renewal application requesting the same category; and
- an unexpired I-94 showing valid H-4, L-2 or E status.
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