In the wake of this week’s settlement in Shergill et al, v. Mayorkas, USCIS has issued policy guidance that sets forth its new spousal employment authorization policies and extends those policies to E spouses, in addition to the H-4 and L-2 spouses covered by the settlement.
Automatic extension of E, H-4, and L spousal EADs
Effective immediately, USCIS is implementing an automatic extension of employment authorization document (EAD) validity to E, H-4, and L-2 spouses who have filed a timely application to extend an EAD and have an unexpired Form I-94 entry record for E, H-4 or L nonimmigrant status.
Eligible E, H-4 and L-2 spouses will receive an automatic extension through the earlier of: (1) the expiration date of their valid E/H/L Form I-94; (2) the approval or denial of their EAD renewal application; or (3) 180 days from the expiration of their previous EAD.
For Form I-9 employment eligibility verification purposes, the following combination of documents is acceptable:
- Form I-94 indicating unexpired H-4, E or L status;
- Form I-797C for a timely-filed EAD renewal application with a requested EAD category of (a)(17), (a)(18) or (c)(26); and
- A facially expired EAD in the same category, i.e., (a)(17), (a)(18) or (c)(26).
E and L spousal work authorization incident to status
In addition, USCIS will recognize E and L dependent spouses as work authorized incident to their nonimmigrant status – i.e., without the need for an EAD – but only if they hold a Form I-94 arrival record specifically annotated to indicate their spousal status. The Department of Homeland Security does not currently issue I-94s with spousal annotations; it is in the process of changing its systems so that it can do so. Until an E or L spouse receives such an I-94, they will be required to have an EAD in order to work. E and L spouses who receive an I-94 with a spousal annotation will be able to file Form I-765 and request an EAD if they want one.
When the new spousal I-94s are issued, they will qualify as List C documents for Form I-9 purposes, meaning that they can be used to demonstrate employment eligibility; an E or L spouse presenting such an I-94 will also need to provide an acceptable identity document in order to complete the I-9 process. An E or L spouse who requests and obtains a USCIS EAD will continue to be able to present it as a List A document, demonstrating both identity and employment eligibility.
The policy on work authorization incident to status does not apply to spouses of E-2 Long-Term Investors in the Commonwealth of the Northern Mariana Islands (CNMI) or to dependents of E nonimmigrant employees of the Taipei Economic and Cultural Representative Office (TECRO) or the Taipei Economic and Cultural Offices (TECO), who must continue to hold an EAD in order to work.