In early November, the USCIS announced new policies regarding employment authorization for certain H, E, and L nonimmigrant dependent spouses. First, these individuals are granted automatic extensions to their work authorization. Second, E and L spouses are granted work authorization “incident to status.” In other words, these individuals will not be required to apply for an Employment Authorization Document (EAD) through USCIS and will automatically be issued I-94 records that permit employment incident to their statuses. Such I-94 records however need to be implemented.
The new policies are a positive change for H, E, and L nonimmigrant dependent spouses.
Automatic Extensions of EADs for H-4, L-2, and E Spouses
The new policies allow H-4, E, and L dependent spouses to qualify for automatic extension of their existing EAD if they properly filed an I-765 application to renew their H-4, E, or L-based EAD prior to its expiration, and the H-4, L-2, or E-2 spouse have an unexpired I-94 showing a valid nonimmigrant status. The EAD will be automatically extended until the I-94 expiration date, approval/denial of the I-765 renewal application, or 180 days from the date of the expiration of the previous EAD – whichever occurs earlier.
Notably, the automatic extension of the EAD for H-4, L-2, and E spouses will only apply to those who have an I-94 document indicating valid underlying H-4, L-2, or E status after the EAD expires. As a result, spouses with expired statuses and a pending I-539 to extend their H-4, L-2, or E status with USCIS cannot benefit from the automatic EAD extension.
L-2 and E Spouses Will be Employment Authorized Incident to Status
The new policies consider L-2 and E-2 dependent spouses to be employment authorized “incident to status.” The old policies required L-2 spouses and certain H-4 spouses to apply for and obtain EAD cards to lawfully work in the United States. Given the increase in processing delays in recent years, many L-2 or E-2 spouses experienced long gaps in work authorization while they waited for their work permit applications to be adjudicated. Under the new rule, a valid admission to the United States as a L-2 or E-2 dependent spouse will allow such spouses to be automatically work authorized without having to affirmatively apply for an EAD. Paradoxically, however, these dependents are temporarily blocked from being considered “work authorized incident to status” for lack of a sufficiently annotated Form I-94.
During the four-month period while DHS develops an administrative solution for annotating Forms I-94 for L-2 and E dependent spouses, these individuals will continue to need an EAD to begin or continue employment. Furthermore, the new USCIS policy confirms that, while L-2 and E dependent spouses will no longer be required to obtain an EAD, they may apply for one if desired.
This specific rule applies only to L-2 and E spouses – H-4 spouses, or H-4, L-2, or E dependent children are not included.