The Department of Homeland Security (“DHS”) has agreed to change its employment authorization (“EAD”) policies for spouses of H-1B workers in H-4 status and spouses of L-1 workers in L-2 status as part of a settlement agreement to end litigation over the long delays in processing EAD renewals.  I have explained the terms of the settlement in greater detail below.  Please note that this does not affect the processing delays for first-time employment authorization applications. 

DHS also has released new guidance, confirming that spouses of E and L visa holders will be eligible for employment based on their valid E or L status.  They will no longer need to apply for an EAD in order to show eligibility to work.  Instead, they will receive a Form I-94 with a notation that they are a dependent spouse, which will be sufficient for showing work authorization and completing the Form I-9, Employment Eligibility Verification. 

In the Policy Alert USCIS released last week on November 12, 2021, the agency made it very clear that until it could implement changes to the Form I-94 to distinguish E and L spouses from E and L children, the spouses would need to rely on an EAD as evidence of employment authorization to present to employers for Form I-9 purposes. The agency did not specify when it would be able to implement the new spouse notation, but it did say it will “immediately” take steps to modify Forms I-94 to evidence dependent spouses (as opposed to children). 

H-4 Spouses

As of November 10, 2021, certain H-4 spouses now may qualify for an automatic 180-day extension of their EADs.  In order to qualify, the H-4 spouse must:

• File the renewal application with USCIS on Form I-765 before the current EAD expires; and

• Have H-4 status on his or her I-94 beyond the expiration of the current EAD. 

The automatic extension terminates when: (1) the Form I-94 expires; (2) the Form I-765 renewal application is either approved or denied; or (3) 180 days from when the EAD expires (as noted on the face of the EAD).

For purposes of verifying employment authorization on Form I-9, employers can use the current EAD document, the receipt notice for the renewal application, and a valid H-4 I-94 to show ongoing authorization to work beyond the expiry of the current EAD for either 180 days or when the I-94 expires (whichever comes earlier). 

USCIS will begin issuing amended receipt notices for the I-765 renewal applications, detailing the new automatic 180-day extension provisions, within the coming 120 days. 

E and L Spouses

Under the agreement and subsequent USCIS Policy Alert, E and L dependent spouses will be considered authorized to work based on their status, but this new policy will not take effect until USCIS and CBP can issue spouses an Form I-94 that specifically notes L or E spouse.  The new I-94 with spouse noted on it will be accepted as proof of employment authorization for I-9 purposes. While the agreement says USCIS will issue guidance on this within 120 days, the agency’s follow up policy alert did not specify a timeline.   

In the meantime, E and L spouses also can benefit from the automatic 180-day extension of employment authorization upon the timely filing of a renewal application if their I-94 remains valid beyond the expiry of their EAD.  Just like for H-4 spouses, the automatic extension terminates when: (1) the Form I-94 expires; (2) the Form I-765 renewal application is either approved or denied; or (3) 180 days from when the EAD expires (as noted on the face of the EAD).

By way of background, the E visa is available to Treaty Traders (E-1), Treaty Investors (E-2) and high-skilled workers from Australia (E-3).  The L visa is available to executives, managers, and specialized knowledge workers of international companies.  

Having worked with countless H-4 and L-2 spouses and their employers, I saw firsthand the tremendous hardships these processing delays caused. What gets forgotten is that these spouses also often are parents to US citizen children and the interruption in their authorization to work affects the entire family.  At the same time, the agency receives over 2 million EAD applications each year.  Granting automatic extensions of work authorization will give the agency more time to manage their work flow and authorizing E and L spouses to work based on status will help reduce the number of applications the agency receives and, hopefully, improve processing times.

If you would like to discuss this development further, please don’t hesitate to contact me.