ARTICLE
2 December 2021
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Effective November 12, 2021, U.S. Citizenship and Immigration Services ("USCIS") extended employment authorization for certain E, H, and L dependent spouses.
United States Employment and HR
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Effective November 12, 2021, U.S. Citizenship and ImmigrationServices (“USCIS”) extended employment authorizationfor certain E,H, and L dependent spouses. Specifically, USCISnow recognizes that L and E dependent spouses have the ability towork “incident to status” and that they, in addition tocertain H-4 spouses, enjoy an automatic extension of a timely filedEmployment Authorization Document (“EAD”). This is awelcome development for both foreign nationals and employers. It isanticipated that the new measure will help avoid therisk ofwork authorization lapsing through government processing delays andshould operate to streamline the on boarding and work renewalprocess for employers.
Why was this expanded?
L and E dependent spouses were always eligible to apply for workauthorization, while H-4 spouses become eligible only if their H-1Bspouse had an approved Form I-140. However, to secure thatwork authorization, USCIS required those eligible dependent spousesto file a Form I-765 for an EAD. Without a valid EAD, they couldnot work. Once granted, EADs were valid for one year. In order tocontinue to have work authorization, the L, E, or H dependentspouse had to file another I-765 to renew theirEAD.
Importantly, those dependent spouses' EADs were notautomatically extended beyond the expiration date even if theirrenewal was timely filed and the government was still processingthe application. By contrast, USCIS recognized that some other EADcategories qualified for an automatic 180-day extension providedthe renewal was timely filed for the same category. USCISproduction and processing delays over the past two years resultedin foreign nationals often waiting over seven months to receivetheir initial or renewed EAD. Because they did not qualify for anautomatic extension, many L, E, or H dependent spouses lost theirability to work.
Consequently, on September 23, 2021, a group ofL-2 and H-4dependent spouses filed suit against the Department of HomelandSecurity (DHS). Each had a Form I-765 application for an EADpending before USCIS. The plaintiffs argued, among other things,that DHS should permit L-2 foreign nationals to work incident tostatus and that DHS had unlawfully withheld the automatic extensionof work authorization for certain H-4 nonimmigrants. On November10, 2021, the parties settled with DHS agreeing to recognize workincident to status for certain L-2 foreign nationals, implementautomatic extension for L-2 and H-4 EADs, and to undertake othermeasures to effectuate the settlement.
On November 12, 2021, USCIS issuedPolicy Alert 2021-25. The new guidance, published in ChapterTwo of theUSCIS Policy Guidance Manual, implemented the terms of thesettlement. Of note, the guidance also expands some of the benefitsto dependent spouses of E nonimmigrant visa holders.
Work authorized incident to status
USCIS now recognizes that certain E and L dependent spouses areemployment authorized incident to their status. This includesforeign nationals in the following categories:
- L-2 nonimmigrants (spouses of L-1 intracompany transfereenonimmigrants)
- E-1S nonimmigrants (spouses of E-1 treaty tradernonimmigrants)
- E-2S nonimmigrants (spouses of E-2 treaty investornonimmigrants, except spouses of E-2 CNMI investors and certaindependents of the Taipei Economic and Cultural programs)
- E-3D/E-3R nonimmigrants (spouses of E-3 Australian specialtyoccupation worker nonimmigrants)
This means that by virtue of being in the United States in validstatus, those foreign nationals no longer need to apply for an EADvia a Form I-765 to prove they have the ability to work. Instead,they may present other documents – such as a valid foreignpassport and their I-94 – to prove they have workauthorization.
However, relief is not immediate. Per the settlement, USCIS has120 days to work with U.S. Customs and Border Protection to updatethe Form I-94 for L-2 nonimmigrant spouses to indicate it can beused as a List C document for Form I-9 purposes. Until then, E andL spouses will still need to rely upon an EAD as evidence ofemployment authorization to present to employers for completion ofForm I-9.
Automatic extension
USCIS now permits that that certain E and L dependent spousesqualify for automatic extension of their existing EADs if properlyfiled. In addition, USCIS extended this benefit to certain H-4nonimmigrant spouses or those spouses of H-1B specialty occupationworker nonimmigrants provided that the H-1B foreign national has anapproved Form I-140.
Employer considerations andForm I-9
Employers should consider training human resources staff toensure they are ready for these changes. In particular, employerswould be well advised to consider reviewing their Form I-9 policiesand procedures, and familiarizing staff with the various documentsthat can be produced. The I-94 can come in a variety of forms: forexample, as an electronic printout from the CBP website or as astapled card in a foreign national's passport. Importantly,the I-94 is a “List C” document that needs to be pairedwith a “List B” document for Form I-9 purposes. This isdifferent to an EAD, which is a “List A” document andtherefore does not need to be presented with any otherdocuments.
Completing the Form I-9 can be a confusing process. And as aresult, errors can happen potentially exposing the company toliability. Employers may want to take advantage of this developmentto evaluate training programs so that staff are up to speed ontheir Form I-9 obligations.
The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.