Nov 12, 2021
Update: Major Changes to EAD Policies for H-4, L-2, and E Dependent Classifications
Jonathan A. Grode and Andrew Clancy Rodgers
A recent settlement between the American Immigration Lawyers Association (AILA) and the Department of Homeland Security (DHS) will result in two major changes to the way that USCIS treats L-2, H-4, and E Dependent Spouse work authorization: L-2 and E Dependent Spouse holders will be granted automatic employment authorization incident to their status. H-4 holders will be granted automatic renewals of employment authorization for applicants that already have valid H-4 status (but an expired EAD card).
Newly issued USCIS policy guidance states L-2 and E Dependent Spouse are authorized for employment in the United States incident to status. CBP will be instructed to annotate the I-94 to indicate that the individual is an L-2 or E spouse, allowing the I-94 to be used for I-9 verification purposes. This means that L-2 and E Dependent Spouse visa holders will no longer have to apply for a separate EAD after entering the United States. As these changes may take up to 6 months to implement, USCIS will also allow for automatic extensions for L-2 and E-2D nonimmigrants who timely file the I-765 EAD renewal applications and continue to have L-2 or E status (whether by extension or travel). The automatic extensions will terminate on the earlier of the end date of L-2 or E status, adjudication of the EAD renewal application, or 180 days following expiration of the previous EAD card.
USCIS will provide for automatic renewals of employment authorization for applications that already have valid H-4 status. Individuals that have timely filed their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of the EAD will qualify for the automatic extension. The automatic extension will terminate on the earlier of the end-date of the H-4 status, adjudication of the EAD application, or 180 days from the previous card’s expiration.
NOTE: Until such time as USCIS can implement changes to the I-94 to distinguish E and L spouses from E and L Children, E and L spouses would still need to rely upon an EAD as evidence of employment authorization to present to employers for completion of Form I-9. Until the notation on Form I-94 issued to E and L dependent nonimmigrants is revised, Form I-94 solely indicating E or L nonimmigrant status is insufficient evidence of employment authorization under List C of Form I-9.
Green and Spiegel, An Immigration Law Firm with Six Decades of Experience:
Green and Spiegel is monitoring this situation closely and will continue to update our blog and provide E-Alerts to advise on the latest developments. As always, we strongly encourage you to reach out to our office if you have any questions regarding if or how these changes impact you, your business, and your family. Our office number is (215)395-8959, we can be reached via web.