In settlement of several lawsuits, the USCIS recently announced significant changes to its policy regarding employment authorization documents (EAD) for certain H-4, E-2, and L-2 dependent spouses. The following policy guidance is effective as of November 12, 2021:
- The automatic extension rule will apply to renewals of H-4, E-2, and L-2 EAD if (1) the EAD renewal application is filed before the existing EAD expires and (2) the applicant has an unexpired I-94 showing status as an H-4, E, or L nonimmigrant dependent spouse;
- The automatic extension of the EAD will continue until the earliest of: (1): the expiration date on Form I-94 showing valid status, (2) the approval or denial of the EAD renewal application, or (3) 180 days from the date of expiration of the previous EAD.
- For employers, the following combination of documents will serve as evidence of the automatic extension of the previous EAD, and are acceptable 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 expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).
- E and L dependent spouses are automatically authorized to work incident to their status and therefore they are no longer required to request employment authorization by filing Form I-765. However, such spouses can opt to file Form I-765 if they choose to receive an EAD.
Overall, these policy changes are good news for these EAD applicants, considering the extraordinary delays in EAD processing.
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