On November 10, 2021, the Department of Homeland Security (DHS) settled a lawsuit brought by the H-4 and L-2 spouses of certain H-1B and L-1 nonimmigrant workers. The plaintiff spouses experienced lengthy delays in the adjudication of their Employment Authorization Document (EAD) applications and alleged that DHS unlawfully withheld employment authorization from them, causing gaps in work authorization, lost income, and job loss.
All spouses of L-1 employees and spouses of certain H-1B employees are eligible to receive U.S. work authorization from the U.S. Citizenship and Immigration Services (USCIS), and they have been required to obtain an EAD from USCIS in order to work. During the past few years, the USCIS processing time for nonimmigrant spousal EAD applications has become much longer than in the past. Applicants routinely wait over a year for USCIS to issue EADs, which causes these employment-eligible spouses to lose their ability to work lawfully in the U.S.
With the recent settlement, DHS has agreed to make policy changes that qualify H-4 and L-2 nonimmigrant spouses for an automatic extension of work authorization based on a timely filed EAD renewal application. USCIS will also amend the Receipt Notices issued on H-4 EAD applications with information about auto-extension eligibility.
The automatic extension is valid for 180 days or until the date that the spouse’s I-94 expires, whichever occurs first. Thus, the automatic extension is available only for spouses whose I-94s expire later than their EADs. Spouses whose EADs and I-94s expire on the same date do not qualify. However, spouses who can obtain a new I-94 extending beyond the expiration of the EAD—generally through international travel—should be eligible for the automatic extension.
In the settlement, DHS also agreed to change its policies so that L-2 spouses have employment authorization “incident to status”—that is, simply by being in the U.S. in valid L-2 status—and thus are not required to obtain an EAD to work. Through U.S. Customs and Border Patrol (CPB), DHS will revise the Form I-94, Arrival/Departure Record, to identify “L-2 Spouse” as a class of admission. This will enable USCIS to provide updated guidance for employers related to I-9 compliance and to designate the L-2 Spouse I-94 as a qualifying List C document that establishes U.S. work authorization.
Two days after signing the settlement agreement, USCIS issued a Policy Alert entitled Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses. This Policy Alert—which rescinds the 2002 memorandum that created the EAD requirement for E and L spouses—is the first step in implementing the terms of the settlement agreement. The Policy Alert is broader than the settlement because it also includes most dependent spouses with E nonimmigrant status. Both E and L nonimmigrant spouses are now authorized for U.S. employment incident to their status and are no longer required to obtain an EAD. However, until such time as USCIS can implement changes to the Form I-94 to reflect “L-2 Spouse” (or E Spouse) as the Class of Admission, E and L spouses will need to apply for an EAD in order to present an employer with an acceptable I-9 document demonstrating work authorization.
In the interim, E and L dependent spouses are eligible for the same automatic extension that is available to certain H-4 spouses and is described in the Policy Alert. Specifically, these nonimmigrant dependent spouses can extend their U.S. work authorization for up to 180 days beyond the expiration date of an existing EAD if they timely file a Form I-765, Application for Employment Authorization, prior to the expiration of their current EAD and they have an unexpired I-94 reflecting H-4 (or, in the interim, E or L dependent) status that continues beyond the expiration of the current EAD. The automatic extension will last up to 180 days but will end earlier if the spouse’s I-94 expires first or if the pending Form I-765 is adjudicated.
For I-9 reverification purposes, the automatic extension of a previous EAD can be established by presenting the expired EAD, a Form I-797C Receipt Notice for a timely-filed EAD renewal application (requesting the same class as the expired EAD), and an unexpired Form I-94 indicating H-4, E, or L dependent nonimmigrant status. The automatic extension provisions are immediately effective as of the date of the Policy Alert—November 12, 2021.
The specific applicability of these provisions may vary depending on case-specific facts and certain uncommon exceptions described in the USCIS guidance. Clients are encouraged to contact their T&S immigration professional to discuss their situation prior to relying on the latest guidance from USCIS.
