The U.S. Citizenship and Immigration Services (USCIS) has given policy guidance, to modify the rules regarding employment authorization for E, L-2, and certain H-4 nonimmigrant dependent spouses. The new policy is particularly useful for E and L-2 dependent spouses, who no longer need to apply for an employment authorization document (EAD) in order to work. These changes were made following a settlement agreement by the U.S. Department of Homeland Security (DHS) after a claim filed by the American Immigration Lawyers Association (AILA) and AILA partners on behalf of certain dependent spouses.
Automatic Extension for Certain H-4, E, and L Dependent Spouses
As detailed in the updated guidance, certain H-4, E, and L-2 dependent spouses now qualify for an automatic extension. Of existing employment authorization and accompanying EAD if both of the following conditions are met:
- The dependent spouses file an application to recharge the EAD before it terminates.
- The dependent spouse’s I-94 is as yet valid.
If both criteria are met, the validity period of the current EAD automatically extends, and it will stay valid until the earlier of the I-94 expiration date, the approval or denial of the EAD renewal application, or 180 days after the expiration date listed on the existing EAD.
E and L Dependent Spouses are now Employment Authorized Incident to Valid Status
Most importantly, the policy guidance gives dependent spouses invalid E or L-2 status employment authorization incident to status. In other words, if a dependent spouse is invalid E or L-2 status. The individual automatically has valid, unrestricted work authorization without the need for an EAD. However, until the USCIS implements changes to the I-94 to distinguish E and L spouses from E and L children, E and L spouses. It will still require a valid EAD for completion of Form I-9, the employment eligibility verification form.
Unfortunately, dependent spouses in H-4 status are not eligible to work incident to status. The reason behind this is that the Immigration and Nationality Act (INA) passed by Congress explicitly provides E and L-2 spouses with work authorization. Employment authorization for H-4 spouses, on the other hand, was given pursuant to a DHS regulation.
The new policy is effective immediately. It should make life easier for many dependent spouses, particularly those in E or L-2 status. As for H-4 dependent spouses, we eagerly await the availability of premium processing for EAD applications and extensions. There is still no word on when the USCIS will finally give this relief.