Information on the New USCIS Policy Changes Regarding Employment Authorizations for Spouses
USCIS Changes Policy Regarding Applications for Employment Authorizations For H-1B and L-1 Visa Spouses
November 12, 2021
The case Shergill, et al. v. Mayorkas has been settled by the American Immigration Lawyers Association (AILA), its litigation partners, the Department of Homeland Security (DHS), and the United States Citizenship and Immigration Service (USCIS). The settlement makes policy changes that will provide relief for H-4 and L-2 spouses suffering from long-delayed processing times for the processing of applications for employment authorization.
For H-4 spouses of H-1B Visa holders, USCIS will amend the receipt notice currently issued to applicants to detail the Employment Authorization Document (EAD) auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD, and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application. For L-2 spouses of L-1 Visa holders, USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with Customs and Border Protection (CBP), change the Form I-94 to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes.
Here is the Policy Alert from USCIS:
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. USCIS is also rescinding the 2002 Legacy Immigration and Naturalization Service memorandum entitled, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition" (2002 INS memorandum). (1)
The regulations at 8 CFR 274a.13(d) provide that employment authorization, Employment Authorization Documents (Form I-766 or EAD), or both, may be automatically extended in certain circumstances. After considering public comments received in response to the Identifying Barriers Across USCIS Benefits and Services; Request for Public Input, (2) USCIS is updating its interpretation and implementation of 8 CFR 274a.13(d) to provide that certain H-4, E, or L dependent spouses will qualify for the automatic extension provided under this regulatory provision if certain conditions are met. Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely-filed EAD renewal application, and facially expired EAD may be acceptable to evidence unexpired employment authorization for Employment Eligibility Verification (Form I-9) purposes.
In addition, USCIS is also clarifying that it will consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status. (3) Since the 2002 INS memorandum, which was issued to implement new legislation, E and L spouses have been required to request employment authorization by filing an Application for Employment Authorization (Form I- 765) and receive an EAD before beginning employment. Therefore, the 2002 INS memorandum is superseded by this updated policy guidance. 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). DHS will immediately take steps to modify Forms I-94 evidencing nonimmigrant status issued to E and L dependents so that E and L dependent spouses can be distinguished from E and L dependent children on the face of the document. Once these changes are made, the 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.
This guidance, contained in Volume 10 of the Policy Manual, is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.
Provides that certain H-4, 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 H-4, E, or L-based EAD before it expires, and they have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable.
Provides that 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 from the date of expiration of the previous EAD.
Provides that 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).
Provides that 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. (4)
(1) See Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition, HQ 70/6.2.5,6.2.12, issued February 22, 2002.
(2) See 86 FR 20398 (Apr. 19, 2021).
(3) This policy does not apply to dependents (including spouses) of Employees of the Taipei Economic and Cultural Representative Office (TECRO) and Taipei Economic and Cultural Offices (TECO), who continue to be required to apply for employment authorization per 8 CFR 274a.12(c)(2). Further, this policy does not apply to spouses of Long- Term Investors in the Commonwealth of the Northern Mariana Islands (E-2 CNMI Investors) who are also required to apply for employment authorization per 8 CFR 274a.12(c)(12). Additionally, as noted in 8 CFR 214.2(e)(23)(x)(B), spouses of E-2 CNMI investors who obtained such status based upon a Foreign Retiree Investment Certificate are not eligible for work authorization.
(4) Note, however, that 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.