Finally, Relief For H-4, E, And L Dependent Spouses
Many foreign workers in H-1B, E, and L nonimmigrant status have spouses who accompany them to the U.S. While these dependents can accompany their spouses in H-4, E, and L nonimmigrant status, they do not automatically receive authorization to work in the U.S. They must first file a separate application to receive employment authorization (Form I-765). Processing times for these applications are averaging 7 to 12.5 months. Due to U.S. Citizenship and Immigration Services (USCIS) backlogs and lengthy processing times, spouses in these nonimmigrant categories have been experiencing gaps in employment authorization and are consequently losing their jobs.
On November 12, 2021, USCIS issued policy guidance in the USCIS Policy Manual to address this issue and prevent gaps in employment authorization. These policy changes are due to a settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas. The policy guidance provides the following important changes:
- Certain H-4, E, or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying Employment Authorization Document (EAD or “work permit”) if they properly filed an application to renew their H-4, E, or L-based EAD before it expires, and they have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable.
- The automatic extension of the EAD will continue until the earlier of: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD.
- For purposes of Form I-9, the following combination of documents evidence the automatic extension of the previous EAD and are acceptable to present to employers: Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L), Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and the expired EAD issued under the same category (Category A17, A18, or C26).
- E and L dependent spouses are employment authorized incident to their status and therefore are no longer required to file Form I-765. However, they may continue to do so if they choose to receive an EAD. Within 120 days, the DHS will take steps to modify Forms I-94 evidencing nonimmigrant status issued to E and L dependents so that E and L dependent spouses can be distinguished from E and L dependent children on the I-94. The revised Form I-94 containing a notation indicating that the bearer is an E or L dependent spouse will be acceptable as evidence of employment authorization under List C of Form I-9. Until DHS is able to revise Form I-94 for this group, dependent spouses will likely continue to request an EAD through the Form I-765 process to meet Form I-9 requirements.
USCIS has concluded that these changes will help to reduce backlogs and avoid gaps in employment for those affected H-4, E, and L dependent spouses. These changes will help not only H-4, E, and L dependent spouses, but also their U.S. employers and other workers who might also feel the adverse impact of disruption in employment authorization.
