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I-9 Alert: New Work Authorization Rules for Certain Nonimmigrant Spouses

In September, more than 4.4 million Americans quit their jobs, joining the ranks of many others who have voluntarily departed in search of greener pastures this year. For many employers, the so-called “Great Resignation” has been a wake-up call for change, whether that be in compensation, employee development, or job flexibility.

But some employers have been experiencing an entirely different kind of employee turnover – one that has nothing to do with job satisfaction, or even an employee’s intentions. These separations (which are truly “regrettable”) are occurring solely due to delays in US immigration processing of work permit renewals.

Over the past 2 years, the processing of Employment Authorization Document (“EAD”) renewals has regularly extended beyond 6 months (and sometimes more than a year), impacting many foreign nationals at the workplace. Applicants can generally file their EAD renewal application up to six months in advance of their expiration, which given the current processing delays, means that many of these individuals run out of time. As a result, employers are often forced to terminate employment, negatively impacting both the employee and the organization.

But last week, a ray of sunshine broke through the bureaucratic clouds, lighting the way towards an expedited work authorization path for certain nonimmigrant L-2, H-4, and E visa spouses. This breakthrough, courtesy of a class action lawsuit and the resulting settlement, significantly changes how these spouses obtain and/or maintain work authorization in the US.

Summary of Work Authorization Changes

Last week’s settlement and the resulting USCIS policy update made two important changes with regards to work authorization of nonimmigrant spouses (both of which also have I-9 implications as further described below):

  1. H-4, E, and L-2 dependent spouses now qualify for automatic extension of their EADs
  2. E and L dependent spouses are employment authorized incident to their status and are no longer required to obtain EADs

Auto-Extensions for H-4, L-2 and E Spouses

Employers may recall that DHS amended its regulations way back in 2017 to provide for automatic extensions of up to 180 days for certain classes of individuals who are seeking to renew their EADs. Although the regulation did not limit eligibility for automatic extension by visa category, DHS nevertheless prohibited H-4, L-2, and E spouses from benefiting from the rule.

However, pursuant to DHS’ new policy update, H-4, E, and L dependent spouses now qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly file an application to renew their EAD before it expires.

However, there are two very important catches: first, DHS noted that the applicant must also have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable, in order to qualify for the extension. Second, the policy indicates that the automatic extension of the EAD will continue until the earlier of the end date on the employee’s Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD.

This means, in essence, that an automatic EAD extension is not available to H-4, L-2 and E spouses who are still waiting for an extension of their underlying status (I-94) – a process which is typically filed at the same time as the EAD renewal.  These employees will need to wait until their I-539 extension application is approved or look to travel internationally (after the primary spouse’s extension has been approved) to obtain an extended I-94 at the port of entry.

And needless to say, employees should definitely speak with immigration counsel first before exploring the international travel workaround (which has its own complications and downsides).

I-9 Implications for Auto-Extensions of L-2, E, or H-4 EADs

Pursuant to the new policy, employees in L-2, E, or H-4 status who have an expiring or expired EAD may present the following combination of documents to take advantage of an automatic extension:

  • 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) for L-2s, (a)(18) for Es, or (c)(26) for H-4s.
  • Facially expired EAD issued under the same category

Employers will then need to reverify the employee’s work authorization on the earlier of: the end date of the individual’s status as noted on the I-94, the approval or denial of the Form I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD.

In connection with the settlement, USCIS also announced that within the next 120 days, they will amend the receipt notice issued to applicants with pending H-4 EAD applications to include information about automatic extension eligibility.

New Rules for E and L-2 Spouses Removes EAD Requirement

Perhaps more excitingly, DHS also announced that E and L-2 spouses are now considered “employment authorized incident to status” which means they no longer need to obtain an EAD in order to work (although the policy notes that they can continue to request an EAD if they so choose).

When Congress granted employment authorization to L-2 and E spouses almost 20 years, the former Immigration and Naturalization Service (INS) explicitly required both classes of applicants to apply for work authorization through the EAD process. However, following the lawsuit and careful consideration of the delays and other factors, USCIS has now reversed course and instead will deem E and L dependent spouses employment authorized incident to their E and L nonimmigrant status – no EAD required.

I-9 Implications for L-2 and E Spouses

Although L-2 and E spouses will now be considered work authorized “incident to their status,” this change will take some time to go into effect since DHS first needs to update their documents.

Specifically, within 120 days of the settlement, DHS will take steps to modify the I-94s issued to E and L spouses so that they can be distinguished from E and L dependent children, who are not eligible for work authorization. Once these changes are made, the revised Form I-94 containing a notation indicating that the bearer is an E or L dependent spouse will be acceptable as evidence of employment authorization under the generic “catch-all” List C document type.

DHS warns employers that until those I-94s are updated, E and L spouses would still need to rely upon an EAD as evidence of employment authorization for completion of the I-9. In other words, a Form I-94 solely indicating E or L nonimmigrant status without the “spouse” notation would be considered insufficient evidence of employment authorization under List C of Form I-9.

What’s Next on the I-9 Front

Given the significance of these changes, we expect that the USCIS will issue further guidance and instructions for employers on both of these topics (auto-extensions and E/L spouse work authorization) through their usual channels – i.e., I-9 Central and updates to the M-274 Handbook for Employers.

In the meantime, if you have any questions on these policy changes or I-9/E-Verify compliance in general, please drop me a line here. You can also contact us to learn more about our electronic I-9 and E-Verify platform, Guardian, which helps streamline and standardize your hiring practices.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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