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KLF Client Alert

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.

Key Takeaways:
  • 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). 
Please contact us at info@klugfirm.com or +1 (212) 495-9245 if you require any assistance.

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This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Klug Law Firm.

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