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If you are the spouse of an H-1B or L-1 visa holder, a new legal settlement with USCIS brings relief to many of these spouses in getting or retaining work authorization. In March 2021, a class action lawsuit was filed, Shergill et al, v Mayorkas, seeking to compel the Department of Homeland Security (DHS) to fix policies that caused many spouses of H-1B and L-1 visa holders to lose their work authorization. Additionally, the USCIS has changed its position on E visa’s spouses obtaining work authorization.
As announced by AILA:
Once implemented by the USCIS, L-2 spouses will no longer have to apply for work authorization and need an EAD as proof in order to work in the United States. For H-4 spouses who have lawful status and merely need to renew their employment authorization, they will now enjoy an automatic extension of their authorization for 180 days after expiration should the agency fail to process their timely-filed applications.
After the settlement, the USCIS issued new policy guidance on November 12, 2021, in a memo entitled “Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses.” In the guidance, it states:
USCIS will interpret 8 CFR § 274a.13(d) such that certain H-4 nonimmigrants who timely file their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(26)-based employment authorization and EADs. This is as long as they properly filed an application to renew their H-4 based EAD before it expires, and they have an unexpired Form I-94 showing their status as an H-4 nonimmigrant
Certain E or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly filed an application to renew their E or L-based EAD before it expires, and they have an unexpired Form I-94 showing their status as an E or L nonimmigrant, as applicable.
Certain E or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly filed an application to renew their E or L-based EAD before it expires, and they have an unexpired Form I-94 showing their status as an E or L nonimmigrant, as applicable.
This is welcome relief for employers because in the past year, the wait time for EAD processing has ranged from six to 12 months. This delay in processing has caused immense problems for companies looking to hire or retain foreign employees. Some companies have had to terminate employees while the employees wait for their EADs.
In order to establish the automatic extension of the previous EAD, the following combination of documents are acceptable to present to employers for I-9 purposes: Form 1-94 indicating the unexpired nonimmigrant status (H-4, E, or L), Form I-797C for a timely-filed EAD renewal application (Form 1-765) stating "Class requested" as "(a)(l7)," "(a)(18)," or "(c)(26)," and the facially expired EAD issued under the same category (that is, indicating Category A(l7), A(18), or C(26)).
Within 120 days of the settlement, DHS will issue new regulations to modify the I-94s issued to E and L spouses so that they can be distinguished from E and L dependent children, who are not eligible for work authorization. Upon such, the revised Form I-94 containing a notation indicating the recipient is an E or L dependent spouse will be accepted as evidence of employment authorization under the generic “catch-all” List C document type. However, until then, Form I-94 solely indicating E or L nonimmigrant status is insufficient evidence of employment authorization under List C of Form l-9.
Although great news, this means an automatic EAD extension is not available to H-4, L-2 and E spouses who are still waiting for an extension of their underlying status (I-94) – a process which is typically filed at the same time as the EAD renewal. Unfortunately, these employees will need to wait until their I-539 extension application is approved or look to travel internationally to obtain an extended I-94 at the port of entry.
If you want to know more information on issues related to employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
