Publication

Earlier this month, United States Citizenship & Immigration Services (USCIS) issued new policy guidance that automatically extends employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. This new policy guidance also recognizes E and L spouses as authorized to work “incident to status,” which means that these individuals will no longer be required to apply for an Employment Authorization Document (EAD) through USCIS.

The policy change is part of Department of Homeland Security’s (DHS) recent settlement in Shergill, et al. v. Mayorkas. Plaintiffs comprised L-2 and H-4 dependent spouses with pending employment authorization applications. Until now, in order to lawfully work in the United States, L-2 spouses and certain H-4 spouses have been required to file Form I-765 applications with USCIS to obtain Employment Authorization Documents (EAD cards). The processing times for these applications have increased dramatically in recent years, with many L-2 or H-4 spouses experiencing lengthy gaps in work authorization while their EAD applications are pending.

Although the settled lawsuit did not involve dependent spouses in the E visa category, USCIS decided to extend the same principles encapsulated in the agreement to include E spouse since the regulatory basis and procedural framework for E and L spousal work authorization are virtually the same.

The parties’ settlement agreement has major implications for how dependent spouses of certain foreign workers will obtain and demonstrate U.S. work authorization moving forward. Key points outlined in the new USCIS policy guidance (the full text of which is available here) are as follows:
 

• E and L dependent spouses are now employment authorized incident to their status. E and L spouses will no longer need to obtain an EAD card through USCIS. In lieu of an EAD card, E and L dependent spouses will be able to present their Form I-94 record to U.S. employers for the purposes of I-9 verification.
   
  • Note: this change will not go into practical effect until USCIS and U.S. Customs and Border Protection have changed Form I-94 to differentiate dependent spouses from dependent children, who are not eligible for work authorization. According to the terms of the settlement agreement, these modifications should be implemented no later than March 10, 2022, though the policy guidance itself does not provide a specific timeline. Until then, E and L dependent spouses will need to provide employers with EAD cards in order to satisfy I-9 verification requirements.
     
• Certain H-4, E, or L dependent spouses now qualify for an automatic extension of their existing EAD card if they properly filed an application to renew their EAD card before it expired and they have an unexpired Form I-94 showing their status as a dependent. The automatic extension of the EAD will continue until the I-94 record expires, the EAD renewal application is adjudicated, or 180 days from the date of expiration of the previous EAD, whichever is earliest.
   
  • Note: because the length of the automatic extension is limited by the validity of the applicant’s I-94 record, this provision will not help applicants whose I-94 and EAD card expiration dates match, for example, those with EAD extensions filed concurrently with I-539 applications to extend status. However, some individuals may be able to extend their I-94 record through international travel and consequently benefit from this policy.

Given the significance of the I-94 record to this new process, we recommend individuals and employers reevaluate how and when dependent H-4, E, and L-2 spouses apply for an extension of status. Whether you are an employer wondering how this USCIS policy update will affect your employees or your company’s I-9 verification procedures, or an individual curious as to what this might mean for your or your spouse’s U.S. work authorization, we encourage you to reach out to the attorneys in the Michael Best Immigration Practice Group if you have any questions.