Changes to Work Authorization for E, L-2, and Certain H-4 Dependent Spouses

The U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance, to revise the rules regarding employment authorization for E, L-2, and certain H-4 nonimmigrant dependent spouses. The new policy is especially beneficial for E and L-2 dependent spouses, who no longer need to apply for an employment authorization document (EAD) in order to work. These changes were made following a settlement agreement by the U.S. Department of Homeland Security (DHS) after a lawsuit filed by the American Immigration Lawyers Association (AILA) and AILA partners on behalf of certain dependent spouses.

Automatic Extension for Certain H-4, E, and L Dependent Spouses

As detailed in the updated guidance, certain H-4, E, and L-2 dependent spouses now qualify for an automatic extension of existing employment authorization and accompanying EAD if both of the following conditions are met:

1. The dependent spouse files an application to renew the EAD before it expires.
2. The dependent spouse’s I-94 is still valid.

If both criteria are met, the validity period of the existing EAD automatically extends, and it will remain valid until the earlier of the I-94 expiration date, the approval or denial of the EAD renewal application, or 180 days after the expiration date listed on the existing EAD.

E and L Dependent Spouses are now Employment Authorized Incident to Valid Status

More importantly, the policy guidance provides dependent spouses in valid E or L-2 status employment authorization incident to status. In other words, if a dependent spouse is in valid E or L-2 status, the individual automatically has valid, unrestricted work authorization without the need for an EAD. However, until the USCIS implements changes to the I-94 to distinguish E and L spouses from E and L children, E and L spouses will still need a valid EAD for completion of form I-9, the employment eligibility verification form.

Unfortunately, dependent spouses in H-4 status are not eligible to work incident to status. The reason for this is that the Immigration and Nationality Act (INA) passed by Congress explicitly provides E and L-2 spouses with work authorization. Employment authorization for H-4 spouses, on the other hand, was issued pursuant to a DHS regulation.

Conclusion

The new policy is effective immediately. It should make life easier for many dependent spouses, especially those in E or L-2 status. As for H-4 dependent spouses, we eagerly await the availability of premium processing for EAD applications and extensions. There is still no word on when the USCIS will finally provide this relief.

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