Work Authorization Update—Relaxed Rules For E, L, and H Spouses

By Benjamin A. Nucci and Rebecca A. Winterscheidt

Effective November 12, 2021, U.S. Citizenship and Immigration Services (“USCIS”) extended employment authorization for certain E, H, and L dependent spouses. Specifically, USCIS now recognizes that L and E dependent spouses have the ability to work “incident to status” and that they, in addition to certain H-4 spouses, enjoy an automatic extension of a timely filed Employment Authorization Document (“EAD”). This is a welcome development for both foreign nationals and employers. It is anticipated that the new measure will help avoid the risk of work authorization lapsing through government processing delays and should operate to streamline the on boarding and work renewal process for employers.

Why was this expanded?

L and E dependent spouses were always eligible to apply for work authorization, while H-4 spouses become eligible only if their H-1B spouse had an approved Form I-140.  However, to secure that work authorization, USCIS required those eligible dependent spouses to file a Form I-765 for an EAD. Without a valid EAD, they could not work. Once granted, EADs were valid for one year. In order to continue to have work authorization, the L, E, or H dependent spouse had to file another I-765 to renew their EAD.

Importantly, those dependent spouses’ EADs were not automatically extended beyond the expiration date even if their renewal was timely filed and the government was still processing the application. By contrast, USCIS recognized that some other EAD categories qualified for an automatic 180-day extension provided the renewal was timely filed for the same category. USCIS production and processing delays over the past two years resulted in foreign nationals often waiting over seven months to receive their initial or renewed EAD. Because they did not qualify for an automatic extension, many L, E, or H dependent spouses lost their ability to work.

Consequently, on September 23, 2021, a group of L-2 and H-4 dependent spouses filed suit against the Department of Homeland Security (DHS). Each had a  Form I-765 application for an EAD pending before USCIS. The plaintiffs argued, among other things, that DHS should permit L-2 foreign nationals to work incident to status and that DHS had unlawfully withheld the automatic extension of work authorization for certain H-4 nonimmigrants. On November 10, 2021, the parties settled with DHS agreeing to recognize work incident to status for certain L-2 foreign nationals, implement automatic extension for L-2 and H-4 EADs, and to undertake other measures to effectuate the settlement.

On November 12, 2021, USCIS issued Policy Alert 2021-25. The new guidance, published in Chapter Two of the USCIS Policy Guidance Manual, implemented the terms of the settlement. Of note, the guidance also expands some of the benefits to dependent spouses of E nonimmigrant visa holders.

Work authorized incident to status

USCIS now recognizes that certain E and L dependent spouses are employment authorized incident to their status. This includes foreign nationals in the following categories:

• L-2 nonimmigrants (spouses of L-1 intracompany transferee nonimmigrants)
• E-1S nonimmigrants (spouses of E-1 treaty trader nonimmigrants)
• E-2S nonimmigrants (spouses of E-2 treaty investor nonimmigrants, except spouses of E-2 CNMI investors and certain dependents of the Taipei Economic and Cultural programs)
• E-3D/E-3R nonimmigrants (spouses of E-3 Australian specialty occupation worker nonimmigrants)

This means that by virtue of being in the United States in valid status, those foreign nationals no longer need to apply for an EAD via a Form I-765 to prove they have the ability to work. Instead, they may present other documents – such as a valid foreign passport and their I-94 – to prove they have work authorization.

However, relief is not immediate. Per the settlement, USCIS has 120 days to work with U.S. Customs and Border Protection to update the Form I-94 for L-2 nonimmigrant spouses to indicate it can be used as a List C document for Form I-9 purposes. Until then, E and L spouses will still need to rely upon an EAD as evidence of employment authorization to present to employers for completion of Form I-9.

Automatic extension

USCIS now permits that that certain E and L dependent spouses qualify for automatic extension of their existing EADs if properly filed. In addition, USCIS extended this benefit to certain H-4 nonimmigrant spouses or those spouses of H-1B specialty occupation worker nonimmigrants provided that the H-1B foreign national has an approved Form I-140.

Employer considerations and Form I-9

Employers should consider training human resources staff to ensure they are ready for these changes. In particular, employers would be well advised to consider reviewing their Form I-9 policies and procedures, and familiarizing staff with the various documents that can be produced. The I-94 can come in a variety of forms: for example, as an electronic printout from the CBP website or as a stapled card in a foreign national’s passport. Importantly, the I-94 is a “List C” document that needs to be paired with a “List B” document for Form I-9 purposes. This is different to an EAD, which is a “List A” document and therefore does not need to be presented with any other documents.

Completing the Form I-9 can be a confusing process. And as a result, errors can happen potentially exposing the company to liability. Employers may want to take advantage of this development to evaluate training programs so that staff are up to speed on their Form I-9 obligations.