- L-2 and E dependent spouses are no longer required to apply for an employment authorization document (EAD) to work in the United States. They are employment authorized incident to status
- Certain L-2 and E dependent spouses who choose to apply for an EAD as proof of work authorization are eligible for automatic extensions of EADs for up to 180 days.
- Certain H-4 dependent spouses are eligible for automatic extensions of EADs for up to 180 days.
- To benefit from automatic employment authorization, qualifying H-4, L-2 and E dependent spouses must satisfy two conditions. These are 1) they must be in possession of an unexpired Form I-94 demonstrating valid nonimmigrant status, and 2) they must have timely filed an extension renewal application of their EAD with USCIS.
- USCIS will continue to issue E and L dependent spouses EADs upon request via Form I-765; such EADs are acceptable for Employment Eligibility Verification (Form I-9) as List A documents (documents evidencing both employment authorization and identity).
- Revised Form I-94 containing a notation indicating that the bearer is an E or L dependent spouse will be acceptable as evidence of employment authorization under List C of Form I-9.
- The following combination of documents evidence the automatic extension of the previous EAD, and are acceptable to present to employers for Form I-9 purposes: Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L), Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and the facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).
Overview
These recent changes are a significant departure from prior USCIS policy, which required L-2 and E dependent spouses to apply and wait for an EAD to be issued before they could begin working. In addition, L-2, E, and H-4 dependent spouses were not previously eligible for automatic EAD extensions. Given that government processing times for EADs can be a year or more, L-2, E, and H-4 dependent spouses regularly experienced long periods of unemployment while they waited for their EADs to be approved. USCIS’s policy change should help alleviate some of the work authorization issues experienced by these spouses.
USCIS and CBP have begun annotating L-2 and E entry and approval documents (Form I-94) with an “S” designation to indicate that the holder is a dependent spouse and thus eligible to work. The documents with an “S” designation can be used by L-2 and E dependent spouses to show employers they are authorized to work in the United States.
Moreover, USCIS announced on March 18, 2022, that it will begin mailing new notices beginning on April 1, 2022, with the new codes to E or L spouses age twenty-one or over who have an unexpired Form I-94 that was issued before January 20, 2022. An E or L spouse who is under the age of 21 should request a notice by emailing E-L-married-U21@uscis.dhs.gov.
Note however that while the automatic extension of employment authorization of certain qualifying H-4 spouses is a welcome policy change, the USCIS policy announcement does not address the harms associated with the significant wait times associated with initial I-765 applications for employment authorization filed by H-4 spouses