November 15, 2021
As a result of a settlement agreement in a federal lawsuit Shergill et al, v Mayorkas (21-cv-1296-RSM)., U.S. Citizenship and Immigration Services (USCIS) will change its employment authorization (EAD) policies with respect to some H-4, L-2 nonimmigrants. The new USCIS policy guidance applies to applications for initial work authorization and renewal for holders of H-4, L-2 and E status (categories C26, A17 and A18). Here are the highlights of the new policy:
- H-4, L-2 or E dependent spouses qualify for automatic extension of their existing employment authorization (EAD) if they properly filed an I-765 application to renew their EAD before its expiration. The auto-extension of the work authorization will terminate on the earliest of their current I-94 expiration date, the approval or denial of their EAD renewal, or 180 days. To verify their employment work authorization for I-9 purposes, they will need to present a valid Form I-94 and I-797C receipt notice from USCIS indicating a timely filed I-765 renewal application.
- USCIS has recently been adjudicating certain I-539 applications for extension of dependent status shortly after the principal’s I-129 petition when the latter has been filed with a request for premium processing. So, if and when the I-539 application is approved, the applicant would receive the new I-94 Form extending their H-4, L-2 or E dependent nonimmigrant status. In the alternative, departing the U.S. and returning in renewed dependent status could be an option to obtain the required new Form I-94 showing valid dependent status, for automatic extension of work authorization.
- L and E dependent spouses will be considered work authorized incidental to status, but the U.S. government will first need to change the format of the Form I-94 card to reflect this upon the individual’s entry. Such individuals may still choose to file Form I-765, EAD, which could make the I-9 process easier, as some employers might be reluctant to rely on the Form I-94 even once the new I-94 card is issued. Updates to the I-9 guidance is forthcoming.
This is welcome news for H-4, L-2 and E nonimmigrants! If you have any questions about your EAD eligibility under the new guidance, contact us at firstname.lastname@example.org.
Written by Teodora D Purcell, Partner