Written by David S. Rugendorf

Following on the November 11, 2021 announcement of a settlement agreement on the subject (see our MSK Immigration Alert, “USCIS Agrees To Relief For L-2 And H-4 Spousal Work Authorization (EAD) Applicants” (November 11, 2021)), the USCIS today issued guidance on its new policy, titled “Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses” (USCIS Office of the Director, Policy Alert: PA-2021-25; November 12, 2021) Although not part of the settlement agreement, USCIS expanded the affected classes of individuals to include not only H-4 and L-2 spouses, but E nonimmigrant spouses as well. This new policy is effective immediately.

According to the new policy, H-4, E and L-2 dependent spouses may provide an unexpired Form I-94, a receipt notice showing a timely-filed EAD renewal application and a facially expired EAD card for employment eligibility (Form I-9) purposes. Also, USCIS will consider E and L dependent spouses (but not H-4s) to be employment authorized incident to valid status. As a part of this new “incident to status” policy, the Department of Homeland Security will modify the existing Form I-94 for E and L spouses to reflect this change. Children of E and L nonimmigrants will continue to be issued the existing Form I-94, as they will not be authorized to work, consistent with the current policy. Once the new I-94 form is issued, it will be acceptable evidence of employment authorization, per List C of Form I-9. H-4 spouses will also continue to receive the current version of Form I-94.

The guidance specifically provides as follows:

• As noted above, H-4, E and L dependent spouses will receive an automatic extension of their existing employment authorization (EAD) if they properly filed an application to renew their EAD prior to its expiration, and they have an unexpired Form I-94 showing current status as an H-4, E or L-2 nonimmigrant spouse.
  
• The automatic extension will continue to the earlier of: the I-94 expiration date, approval/denial of the EAD renewal request, or 180 days.
  
• For I-9 purposes, an H-4, E or L-2 nonimmigrant spouse may show an unexpired Form I-94, a receipt notice in the appropriate EAD renewal category, and a facially expired EAD card.
  
• As their work authorization is now incident to status, E or L spouses will no longer be required to file Form I-765 to receive EAD, but may do so. However, until the new I-94 Form is promulgated, E or L spouses must rely on an EAD card to show evidence of employment authorization.

This expansion of work authorization has its limitations, however. For example, spouses whose H-4 status has expired, but who remain lawfully in the United States based on a timely-filed Form I-539 extension of status request, will not have a valid I-94 indicating current H-4 status, and as such, these individuals will not benefit from the new automatic EAD extension policy.

Hopefully, this change will hopefully free up USCIS adjudication resources, with so many fewer EAD extensions to process. As details are critical, each situation must be reviewed on its facts, and employers are strongly recommended to review these matters with MSKs Immigration attorneys.