USCIS to Drastically Change Processing of Employment Applications for L-2, E, and H-4 Nonimmigrant Spouses

Seyfarth Synopsis: USCIS issued a Policy Memorandum following the  settlement of  a lawsuit that significantly changes work authorization rules for H-4, E, and L-2 spouses.  Specifically, certain H-4, E, and L-2 Employment Authorization Document (“EAD”) applicants will be eligible for automatic extensions of their employment authorization pursuant to timely-filed EAD requests. In addition, USCIS and CBP will update Form I-94 to reflect that E and L-2 spouses are employment authorized incident to status and will not require issuance of an EAD for employment.

A. Automatic Renewals of Employment Authorization for Qualifying Applicants with H-4 Status.

Following the settlement agreement in Shergill, et al. v. Mayorkas, 11/10/2021, No. 21-cv-1296-RSM, the United States Citizenship & Immigration Services (“USCIS”) issued a Policy Memorandum on November 12, 2021, confirming that it will be making structural changes for work authorization for multiple spousal categories, including L-2, E, and H-4 spouses.

Under the settlement agreement, USCIS will now interpret the regulations such that H-4 nonimmigrants who timely file Form I-765 Employment Authorization Document (“EAD”) renewal applications and continue to hold valid H-4 status beyond the expiration date of their EAD will qualify for an automatic extension of their employment authorization. The automatic extension will end at the earliest of:

• The end date of the applicant’s H-4 status, as noted on Form I-94;
• The adjudication of Form I-765 EAD; or,
• 180 days from the “Card Expires” date on the face of the previously-issued EAD.

The caveat that an auto extension is dependent on the expiration date of the H-4s Form I-94 is disappointing.  Since H-4 renewals with the U.S. Citizenship and Immigration Service are not eligible for expedites, ultimately the I-94 expiration negates any sort of auto extension.  The alternative is for the H-4 to travel after the principal’s H-1B petition is approved, but again, given the ongoing challenges with international travel and visa appointment availability at U.S. consulates world-wide, in the end these changes do not have the impact many hoped for following the settlement announcements this week. 

For those who do end up benefiting from this change, for the purposes of Form I-9, Employment Eligibility Verification, employees may present the following combination of documents to their employers to take advantage of the automatic extension:

• An expired EAD indicating Category C26; and
• Form I-797C, Receipt Notice, for Form I-765, indicating Category C26 and showing that the I-765 renewal application was filed before the previously-issued EAD expired; and,
• An unexpired Form I-94 showing valid H-4 status.

The employer must re-verify the applicant’s Form I-9, Employment Eligibility Verification, prior to one of the following:

• The end date of Form I-94 showing valid H-4 status;
• The date the I-765 application is adjudicated; or,
• The 180th day of the EAD auto-extension period.

Within the next 120 days, USCIS will amend the receipt notice issued to applicants with pending H-4 EAD applications to include information about automatic extension eligibility.

We expect that USCIS will issue specific I-9 guidance shortly on specific directives on “How  to Complete Form I-9 for EADs Extended by I-797C for those In H-4 Status.”

B. Employment Authorization Incident to Valid Spousal L-2 and E Status and Automatic Extensions of EADs

The USCIS  policy guidance also confirms that E and L-2 spouses are employment authorized incident to status. Within the next 120 days, USCIS and the U.S. Customs & Border Protection will change Form I-94 to indicate that the bearer is an E or L-2 spouse so that the I-94 can be used as evidence of employment authorization for the purposes of Form I-9, Employment Eligibility Verification.

Further, USCIS will now interpret the regulations such that E and L-2 nonimmigrant spouses who timely filed their I-765 EAD renewal applications and continue to hold valid E or L-2 status beyond the expiration date of their current EAD qualify for an automatic extension of their employment authorization.  The automatic extension will end at the earlier of one of the following:

• The end date of the applicant’s E or L-2 status, as noted on Form I-94;
• The adjudication of Form I-765 Employment Authorization Application; or
• 180 days from the “Card Expires” date on the face of the previously-issued EAD.

For the purposes of Form I-9, Employment Eligibility Verification, applicants may present the following combination of documents to their employers to take advantage of the automatic extension:

• An expired EAD indicating Category A18 for L-2s or A17 for Es;
• Form I-797C, Receipt Notice, for Form I-765, indicating Category A18 or A17 and showing that the I-765 renewal application was filed before the previously-issued EAD expired; and
• An unexpired Form I-94 showing valid E or L-2 status.

The employer must re-verify the applicant’s Form I-9, Employment Eligibility Verification, prior to one of the following:

• The end date of Form I-94 showing valid E or L-2 status;
• The date the I-765 application is adjudicated; or
• The 180th day of the EAD auto-extension period.

Form I-94 must indicate that the bearer is an E or L-2 spouse, as opposed to an E or L-2 child, in order to be sufficient for I-9 employment verification purposes. However, E or L-2 spouses with pending EAD renewal applications may receive automatic extensions of their EADs using the combination of documents outlined above.

Question we will be following closely:

Q. I already filed my H-4/E/L-2 EAD renewal application, and my nonimmigrant status is valid for two more years. Can I benefit from auto-renewal?

A. Yes. Auto-renewals, using the documents outlined above for the purposes of Form I-9, should be available immediately.

Q. I filed an extension request for my H-4/L-2 status before my status expired, but my extension is still pending. Can I benefit from auto-renewal of my expired EAD?

A. Unfortunately, no. To benefit from auto-renewal, you must have valid L-2/E/H-4 status for the duration of the auto-renewal period. This means that if you concurrently filed your I-539 extension of stay request with your I-765 EAD application, you unfortunately do not benefit from the auto-renewal at this time.

Q. My employer has historically taken the position that L-2 nonimmigrants were work authorized incident to status. Can I continue to work under this approach?

A. This settlement agreement seems to clarify that while L-2 nonimmigrant spouses are eligible for work authorization incident to status, they will now need to show an updated I-94 that indicates they are an L-2 spouse for the purposes of Form I-9. Employers who are relying on this position for their current L-2 nonimmigrant employees should reach out to their Seyfarth Shaw contact to discuss further.

Q. I am an E/L-2 nonimmigrant, but I do not have upcoming international travel plans and do not expect to get a new I-94 anytime soon. My current I-94 does not say that I am an E/L-2 spouse. Can I benefit from work authorization incident to status without traveling internationally or extending my status to get a new I-94?

A. It is not yet clear if there will be a mechanism for updating/correcting I-94 records that were already issued by CBP or USCIS. We will issue updated alerts, as appropriate.

Q. Has the USCIS issued specific guidance on how to complete the Form I-9 in the circumstances noted above?

A. Not as of today, November 12, 2021, but we expect the M-274 and I-9 Central will be updated with instructions on the logistics of recording related information.

Seyfarth Shaw will issue subsequent alerts as the situation continues to develop. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.