Significant Improvements to Spousal Work Authorization for Spouses of E, L, and H-1B Workers
On November 12, 2021, U.S. Citizenship and Immigration Services (USCIS) issued Policy Alert PA-2021-25
which outlined new guidelines for employment authorization for E, L, and certain H-4 nonimmigrant dependent spouses. These new guidelines are the outcome of a federal lawsuit, Shergill, et al v. Mayorkas
(2:21-cv-01296) filed by the American Immigration Lawyers Association (AILA) and litigation partners.
The guidelines significantly streamline the employment authorization process for E and L spouses by making employment authorization incident to status
, meaning that it will no longer be necessary for E or L spouses to apply for an Employment Authorization Document ("EAD card") through filing Form I-765, which can take many months to receive.
The guidelines also provide an automatic employment extension of 180 days for timely filed EAD extensions for H-4 nonimmigrant dependent spouses.
- E spouses are authorized for employment as part of their E status (does not include spouses of TECRO or TECO E-1 visa holders or spouses of E-2 for CNMI Investors).
- L spouses are authorized for employment as part of their L status.
- E and L dependent spouses are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD.
- Until USCIS can implement changes to the I-94 to distinguish E and L spouses from E and L children, E and L spouses will need to rely upon an EAD as evidence of employment authorization to present to employers for completion of Form I-9. Until the notation on Form I-94 issued to E and L dependent nonimmigrants is revised, Form I-94 solely indicating E or L nonimmigrant status is insufficient evidence of employment authorization under List C of Form I-9.
- H-4 spouses qualify for a 180-day automatic extension for properly filed I-765 (EAD) extensions.
- E and L spouses qualify for a 180-day automatic extension for properly filed I-765 (EAD) extensions.
- The following combination of documents are evidence of the automatic extension of the previous EAD, and are acceptable to present to employers for Form I-9 purposes: 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 facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).
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