Employment Authorization Updates for H-4, E-2, and L-2 Dependent Spouses

USCIS has recently issued policy guidance in the USCIS Policy Manual to reflect the historic settlement in Shergill, et al. v. Mayorkas. USCIS has also rescinded “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition” (2002 INS memorandum). USCIS now considers L-2 and E-2 dependent spouses to have employment authorization incident to their status meaning they do not need to apply for a separate employment authorization via Form I-765. This employment authorization will be conveyed via their electronic I-94 which will soon distinguish them as a dependent spouse and can be used as a List C document for I-9 purposes. This update is to be done within 120 days of the settlement date (November 10, 2021). L-2 and E-2 dependent spouses can still apply for an EAD and this EAD can be used as a List A document for I-9 purposes.

H-4, L-2, and E-2 dependent spouses will also qualify for automatic extension of their employment authorization if the I-765 for the new EAD is filed prior to the expiration of their current EAD and they hold an unexpired I-94. This automatic extension will expire the earlier of 180 days from the expiration of their EAD, upon the expiration of their I-94, or upon the approval or denial of the I-765 for the new EAD. The documents for I-9 purposes during the automatic extension would be the following: an unexpired Form I-94 with H-4, E, or L status, Form I-797C for a timely-filed EAD renewal application via Form I-765 stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and the expired EAD for the same category.

If you have questions or concerns regarding your employment authorization, you may wish to consult with an immigration attorney. Attorney Rebecca Carcagno offers a free initial intake consultation which can help you determine if you are eligible to apply for the EAD. You may schedule this free initial intake consultation with Attorney Carcagno at (734) 999-0360 or through the website.

***Please keep in mind that this blog posting is for educational purposes only (i.e., to give you general information and a general understanding of this immigration related matter); this blog posting does not provide specific legal advice and does not form an attorney-client relationship.***

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