On November 12, 2021, USCIS issued a policy guidance to address automatic extension of employment authorization for certain H-4, E, and L non-immigrant dependent spouses. At the same time USCIS also rescinded the 2002 Legacy Immigration and Naturalization Service memorandum. The H-4, E, and L non-immigrant dependent spouses have been suffering from long delayed processing times for the processing of applications for employment authorization. (Shergill, et al. v. Mayorkas, 11/10/21).
For H-4’s:
Effective immediately from November 12, 2021 onwards, H-4 dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if 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.The automatic extension of the EAD will continue until the earlier of: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days after the expiration of the previous EAD.
According to USCIS 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: a) Form I-94 indicating the unexpired nonimmigrant status (H-4), b) Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(c)(26),” and the facially expired EAD issued under the same category (that is, indicating Category C26).
For E and L dependent spouses:
Effective immediately from November 12, 2021 onwards, 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. The automatic extension of the EAD will continue until the earlier of: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days after the expiration of the previous EAD.
Also., most importantly E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD.
E and L dependent spouses are employment authorized incident to status and, in cooperation with CBP, USCIS will change the Form I-94, to indicate that the bearer is an E and L dependent spouse so that it can be used as a List C document for Form I-9 purposes. In addition, until USCIS is able to issue alternative evidence of employment authorization for E and L dependent spouse, USCIS will likely continue to request an EAD through the Form I-765 process to meet Form I-9 requirements.
At this time, the only document issued to this E and L nonimmigrant category that satisfies the Form I-9 document requirements is the Form I-766 EAD. USCIS, however, will develop acceptable alternative documentation for E and L dependent spouses to have immediate documentation of their employment authorization upon a grant of E or L status, as applicable. Therefore, until USCIS is able to issue alternative evidence of employment authorization for this E and L dependent spouses’ group, they will likely continue to request an EAD through the Form I-765 process to meet Form I9 requirements.
We will regularly update the blog as soon as any new information is available.
Disclaimer
This article aims to provide new information concerning USCIS policy guidance on the employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).
