Select H-4, E, and L Nonimmigrant Dependent Spouses Eligible for Work Authorization upon Entry and Automatic Extension of Employment Authorization

On September 23, 2021, Plaintiffs, L-2 visa holders and H-4 visa holders seeking employment authorization, sued United States Citizenship and Immigration Services (USCIS) alleging that USCIS unlawfully required them to apply for employment authorization when, in fact, the statute conferred employment authorization on them upon arrival in the United States.

On November 11, 2021, the parties entered into a settlement agreement (Agreement) that has lasting ramifications for H-4 and L nonimmigrants. The settlement agreement declares that H-4 and L visa holders are eligible for automatic extensions of employment authorization (as detailed below), and that L-2 dependent spouses are employment authorized incident to status, meaning that they no longer have to apply for a Form I-766, Employment Authorization Document (EAD).

On November 12, 2021, USCIS released a Policy Alert addressing these issues as outlined below.

Automatic Extensions of Employment Authorization for H-4, E¹, and L Dependent Spouses

USCIS has stated that H-4, E, or L dependent spouses who: (1) possess an unexpired Form I-94; (2) a Form I-797C showing a timely filed renewal application for an EAD; and (3) an expired EAD qualify for an automatic extension of employment authorization. The Form I-797C and expired EAD must show the same category code (A-17, A-18, or C-26).

The extension is valid until the earlier of: (a) the end date on Form I-94 showing valid status; (b) the approval or denial of the EAD renewal application; or (c) 180 days from the expiration date shown on the previous EAD.

E and L Dependent Spouses Are Employment Eligible Incident to Status

USCIS is now allowing E and L dependent spouses to accept work in the United States without filing a Form I-765, Application for Employment Authorization. USCIS will work with Customs and Border Protection (CBP) to modify the Form I-94 to distinguish between E and L dependent spouses (who are work authorized incident to status) and E and L dependent children (who are not work authorized incident to status) within 120 days. USCIS will consider the modified Form I-94 as a List C #7 document for Form I-9 purposes and the employee will have to produce a List B identity document to satisfy the identity and employment eligibility verification requirements of section 274A(b) of the Immigration and Nationality Act.

However, until CBP begins issuing the modified Form I-94, E and L dependent spouses must still apply for - and secure - an EAD to complete Form I-9 unless they meet the criteria for an automatic extension as described above.

As always, Truescreen will continue to monitor the situation and inform our clients accordingly.

Posted: November 16, 2021

¹ Note, E dependent spouses were not included in the settlement agreement but were included in the USCIS policy update.