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.
In such cases, the approved EAD validity period will be extended by operation of law for up to 180 days following expiration. Specifically, the EAD will be extended to the earlier of:
- 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.
The limitation of this benefit to the expiration date on the Form I-94 is very important. It is not enough to simply timely file the EAD extension. EAD expiration dates often align with the Form I-94 expiration date. Unless the Form I-94 has a longer expiration than the currently approved EAD, there is no “extra” employment authorized time under these provisions.
The EAD and Form I-94 expiration dates do not always align — there are infinite variations and differences depending on the situation and category involved. With these changes, there are strategies, particularly involving extensions of status through travel (where possible), which will facilitate eligibility for the 180-day EAD extension.
Form I-9 Documentation for Automatic EAD Extensions
With respect to Form I-9, Employment Eligibility Verification, the proof of eligibility for employment under the 180-day automatic extension requires three documents to establish employment authorization. These are:
- 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.
As explained above, these documents will establish authorization to work for the earlier of 180 days or the expiration of the Form I-94.
These changes are the result of many years of efforts and legal arguments concerning some rather convoluted provisions of US immigration law and regulations. In recent years, the EAD requirements in these categories have become untenable due to greatly extended processing times. These processing delays caused lapses in employment authorization and related uncertainties for both the foreign nationals seeking employment authorization and their US employers. Once the administrative details are resolved for L-2 and E spouses to permit employment without EADs, it is hoped that the processing times will also improve for eligible H-4 spouses and others who require that documentation in order to work in the United States.
For more information on this and related developments, contact a member of Steptoe’s Immigration team.