Foreign national spouses in H-4, L-2 and E-2 status will now benefit from new interpretations of rules regarding employment authorization.  On November 12, 2021, USCIS issued a Policy Alert granting L-2 and E-2 spouses employment authorization incident to status and providing automatic extensions of employment authorization documents (EADs) for a small segment of H-4 spouses.

This policy alert followed on the heels of a settlement agreement in Shergill, et al. v. Mayorkas, between the Department of Homeland Security (DHS) and American Immigration Lawyers Association (AILA) and Partners.  AILA and Partners had filed a Federal Lawsuit claiming, that the prohibition on qualifying H-4 and L-2 applicants benefits from the 180-day extension, was unlawful.  The Policy Alert also includes E-2 spouses not addressed in the settlement agreement.

The details of the Policy Alert are as follows:

Automatic Extensions of Employment Authorization for applicants with valid H-4 status

H-4 Applicants who timely file their EAD extension applications and continue to have H-4 status beyond the expiration of their EAD will qualify for the automatic extension of their (c)(26) based employment authorization.

The automatic extension provisions do not cover H-4 EAD applications filed concurrently with H-4 extensions of status where the underlying EAD expires at the same time as H-4 status.

H-4 Automatic Extension Scenarios:

  • H-1B changes jobs and extends status. H-4 also extends status but does not extend EAD at that time.  When EAD expiration is approaching, H-4 files stand alone EAD extension application to match H-4 current expiration.  Underlying EAD is automatically extended.
  • H-1B extends status. H-4 travels abroad and obtains new H-4 visa.  H-4 enters U.S. and obtains I-94 extension.  H-4 files stand alone EAD extension before expiration of current EAD.  Underlying EAD is automatically extended.

The automatic extension will terminate upon the earlier of the following events:

  • At the end of the individual’s H-4 status as per their I-94;
  • The approval/denial of the I-765 application; or
  • 180 days from the expiration date on their existing EAD card.

For I-9 purposes applicants may present an expired EAD and receipt notice for a timely filed I-765 indicating class (c)(26) and a valid I-94 showing continuing H-4 status.  This will not be possible for most currently pending H-4 / EAD applications.

Employment Authorization incident to E-2 and L-2 spouse status and automatic extensions of EADs

USCIS now acknowledges that E-2 and L-2 spouses will be authorized to work based on having E-2 or L-2 status, without the need to file for EAD.  This benefit will not be available until technical changes are made to I-94s to distinguish spouse dependents from children.  Once these changes are implemented, E-2 and L-2 spouses will be able to use their I-94 as an acceptable List C document for I-9 purposes. Under the related settlement agreement, USCIS has 120 days to implement these changes.

In addition, E-2 and L-2 spouse applicants who timely file an EAD extension application and continue to have E-2 or L-2 status beyond the expiration of their current EAD will qualify for the 180-day automatic extension. The same rules which apply to H-4 (listed above) will also be applicable to the expiration of the 180-day extension for E-2 and L-2 applicants.