Changes to Employment Authorization for E, L-2, and H-4 Spouses

By Beata McCann, Immigration Attorney

The litigation team at Wasden Banias, LLC scored another big win against USCIS in Shergill et al v. Mayorkas, 2:21-cv-01296 (U.S.D.C., Western District of Washington), which resulted in significant changes to the employment authorization for E, L, and H-4 visa holder spouses.  On November 12, 2021, USCIS issued new policies granting the benefit of automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses, in settlement of the Shergill case.  Two (2) updates have since been issued regarding the employment authorization of E and L visa holder spouses and their employment authorization.

H-4 DEPENDENT SPOUSE EMPLOYMENT AUTHORIZATION

An H-4 spouse is eligible for work authorization if the H-1B beneficiary spouse possesses an approved I-140 Immigrant Petition.  On November 12, 2021, USCIS updated its Policy Manual to reflect that the EAD (Employment Authorization Document) of E-1, E-2, E-3, H-4, and L-2 dependent spouses will be automatically extended for a period of up to 180 days if:

  • The dependent spouse properly filed an Application for Employment Authorization (Form I-765) for a renewal of their EAD, in the same class before the current EAD expired; and

  • The dependent spouse has an unexpired Form I-94 indicating valid E, L, or H-4 derivative status.

Any such automatic extension of work authorization will terminate automatically on the earlier of:

  • The end of the validity period of the nonimmigrant status, as shown on the Form I-94;

  • The approval or denial of the application to renew the previous EAD using Form I-765; or

  • 180 days from the date of the expiration of the previous EAD.

E AND L-2 DEPENDENT SPOUSE EMPLOYMENT AUTHORIZATION

For E and L-2 dependent spouses, the changes USCIS has implemented go even further than those for the H-4 dependent spouse.  For E and L-2 dependent spouses, USCIS acknowledged that these spouses are “employment authorized incident to their valid E or L nonimmigrant status.”  As such, as of January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Forms I-94 with the following new Class of Admission (COA) codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9.  Provided an E or L dependent spouse received this new I-94 with the new spouse Class of Admission, s/he no longer needed to file an I-765, Application for Employment Authorization.  However, this new COA was only available for new entries into the U.S. on January 30, 2022, or later, as this COA was only available through CBP.

On March 18, 2022, USCIS announced that if an E or L spouse, aged 21 or over, has an unexpired Form I-94 that USCIS issued before January 30, 2022, it will mail the spouse a notice and an unexpired Form I-94 reflecting the new Class of Admission codes that may serve as evidence of employment authorization.  These new notices will be sent on or about April 1, 2022.

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