United States: USCIS Announces Policy Changes for H-4, L-2, and E-1 / E-2 / E-3 Dependent EAD Workers
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Since the publication of our November 12, 2021 alert, the United States Citizenship and Immigration Services (USCIS) has issued policy guidance following the November 10, 2021 settlement agreement and updated the manual. I-9 providing for automatic extensions of Employment Authorization Document (EAD) cards for H-4, L-2 and E-1 dependent, E-2 dependent or E-3 dependent visa holders. USCIS policy guidelines can be found here.
As described in our previous alert, the Department of Homeland Security (DHS) reached a settlement agreement following a lawsuit filed by spouses H-4 and L-2 suffering from a long-delayed judgment for the treatment of applications for employment authorization document (EAD) cards. As of November 12, 2021, USCIS allows automatic extensions of employment authorization, under certain circumstances, while an EAD renewal application has been filed and is pending with USCIS for H-4 , L-2, and now E-1 / E-2 / E-3 dependent spouses (“E dependent”). In addition, USCIS has now changed its statutory interpretation and will soon offer an ancillary work authorization to the statute for L-2 spouses, dependent spouses of E-1 treaty traders, dependent spouses of E-2 investors, and Joint dependent Australian E-3 specialist professionals. Once this policy comes into effect, dependent spouses L-2 and E will no longer need to apply for an EAD card to be allowed to work.
Automatic extension of EAD for dependent spouses H-4, L-2 and E
USCIS has officially issued guidelines and updated the I-9 manual to provide for automatic extensions of EADs for H-4 and L-2 spouses. In this new policy alert, USCIS grants these benefits to spouses of E-1 Treaty traders, E-2 Treaty investors and E-3 trade professionals from Australia in the respective E dependent classification.
Dependent spouses H-4, L-2 and E will benefit from an automatic extension of their EAD valid for 180 days beyond the expiration date of the EAD if the non-immigrant spouse:
- Correctly file an I-765 EAD renewal request with USCIS before the current EAD expires; and
- Continue to maintain H-4, L-2, or E dependent status beyond the expiration of the existing EAD, as indicated on Form I-94.
The validity of the expired EAD will be extended until the earliest of the following dates:
- 180 days after the expiration of the EAD;
- The expiration of the I-94 file of the dependent nonimmigrant H-4 / L-2 / E; Where
- When a final decision is made on the EAD extension request by USCIS.
For I-9 purposes, an H-4, L-2 or E dependent employee may present: a face-expired EAD indicating category C26, A18 or A17; Form I-797, Notice of Action for Form I-765 with class requested indicating (c) (26), (a) (18) or (a) (17) and showing that the renewal request I-765 EAD was filed before the expiration of the EAD; and an unexpired I-94, showing valid dependent nonimmigrant status H-4, L-2, or E.
Dependent spouses L-2 and E-1 / E-2 / E-3 will receive a work authorization in accordance with the statute
The new USCIS policy states that dependent L-2 and E spouses will be allowed to work due to their status, meaning that a separate Form I-765 EAD application will not need to be filed to obtain a work authorization, and that the L-2 or dependent spouse is authorized to work upon admission to the United States. USCIS, in cooperation with CBP, will amend the I-94 form to indicate that the person is an L-2 spouse so that the I-94 can be used for I-9 purposes. DHS will take action within 120 days to amend the I-94 form. However, please note that until USCIS can implement changes to I-94 to distinguish L-2 and E dependent spouses currently in the United States from L-2 and E dependent children , spouses E and L will still need to rely on an EAD as proof of work authorization to be presented to employers for them to complete the I-9 form.
Obtaining an extended I-94
Since it is necessary for spouses H-4, L-2 and E-3 to have a valid I-94 for the automatic extension of the EAD, we describe two possible ways for a person applying for an H-4 or L – 2 The EAD extension provides an extended I-94:
- File the H-1B or L-1 extension using premium processing and wait for H-1B or L-1 approval. The H-4 or L-2 spouse then leaves the United States and obtains a new visa and returns with an extended I-94. Once the spouse returns, he or she will file the EAD extension upon return to the United States.
- Drop the H-4 or L-2 and EAD extensions with the H-1B or L-1 extension from the main. Once the H-1B or L-1 is approved, the spouse leaves the United States and obtains a new visa and returns with an extended I-94. Form I-539, Request for Extension of Status, will be discontinued, but Form I-765 will not and will continue to be processed by USCIS.
Regarding E dependent spouses, anyone entering the United States on an E visa is admitted for two years, so he or she may already have an extended I-94 card. If a dependent spouse E has an expiring I-94, they can take any of the steps above to extend their I-94.
For questions regarding international travel, please visit our Immigration Resource page, which has a general overview of all travel bans to the United States and visa processing updates.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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