Kristina M. Hernandez
USCIS Issues Policy Guidance Regarding Work Authorization for Certain H-4, E, and L Dependents
As a result of the recent settlement in Shergill, et al. v. Mayorkas, USCIS has issued policy guidance to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. The new guidance is contained in Volume 10 of the Policy Manual and is effective immediately.
E and L Dependents Now Have Employment Authorization Incident to Status
One of the biggest changes is that as of today, USCIS considers E-1, E-2, E-3 and L-2 dependent spouse’s employment authorized incident to status. This simply means that individuals in these categories are authorized to work and no longer need to apply for an EAD card in order to have work authorization. Currently, USCIS and CBP are working towards assigning a new code that would be placed on Form I-94 to distinguish dependent spouses from dependent children. Once the new code and notation are implemented, Forms I-94 indicating that the bearer is an E or L dependent spouse may constitute evidence of employment authorization. Until USCIS can implement changes to the I-94 to distinguish E and L spouses from E and L children, E and L spouses will still need to rely on the EAD as evidence of work authorization to employers for completion of Form I-9.
Applications to Renew Employment Authorization, EADs, and Automatic Extensions
Beginning November 12, 2021, the EAD of an E and L dependent spouse, and employment authorization and EAD of an H-4 dependent spouse, will be automatically extended for a period of up to 180 days if:
The dependent spouse properly filed an Application for Employment Authorization (Form I-765) for a renewal of their E, L, or H-4 dependent spouse-based EAD before the current EAD expired; and
The dependent spouse has an unexpired Form I-94 indicating valid E, L, or H-4 derivative status.
Any such automatic extension will terminate automatically on the earlier of:
The end of the validity period of the nonimmigrant status, as shown on the Form I-94;
The approval or denial of the application to renew the previous EAD using Form I-765; or
180 days from the date of the expiration of the previous EAD.
Acceptable Documents for Form I-9 Purposes
The following combination of documents evidence the automatic extension of the previous EAD:
The facially expired previous EAD stating Category A17, A18, or C26, as applicable;
A Notice of Action (Form I-797C) for Form I-765 with Class requested in the same category as the expired EAD (either “(a)(17),” “(a)(18),” or “(c)(26),” as applicable), and showing that the renewal application was filed before the EAD expired; and
An unexpired Arrival-Departure Record (Form I-94) reflecting H-4, E, or L derivative status, as applicable.
With this document combination, the expired EAD is considered unexpired and acceptable as evidence of identity and employment authorization for completion of Employment Eligibility Verification (Form I-9). Reverification of employment authorization is required at the end of the automatic extension period.