USCIS to Adopt New Policies for H-4 and L-2 Work Authorization

Pursuant to a lawsuit brought by the American Immigration Lawyer Association and its litigation partners, U.S. Citizenship and Immigration Services (USCIS) will implement new policies to improve issuance of work authorization for nonimmigrant H-4 and L-2 spouses.

The following summarizes the key anticipated policy changes. Early indications are that it will take USCIS up to 120 days to implement the new policies. Please note that specific requirements and practices may change as USCIS develops and releases official guidance.

H-4 Spouses – Automatic Extension of EADs

Nonimmigrant H-4 spouses are currently required to have a valid I-94 document showing H-4 status and a valid Employment Authorization Document (EAD) for employment.

Under the new policy, nonimmigrant H-4 spouses may receive an automatic extension of work authorization when they file to renew their EAD provided:

• The I-765 application to renew the EAD is timely filed prior to the EAD expiration date and
• The H-4 spouse has an unexpired I-94 showing valid H-4 status.
  • If the spouse has filed an I-539 application to extend H-4 status, the H-4 spouse will not qualify for the auto-extension of the EAD until the underlying H-4 status is granted.
• The automatic extension of the EAD will be valid until:
  • Expiration of the underlying I-94 showing H-4 status;
  • 180 days from the prior EAD expiration; or
  • Adjudication of the I-765 extension application, whichever comes first.

L-2 Spouse – Employment Authorization Incidental to Status

Nonimmigrant L-2 spouses are currently required to apply for an EAD for employment.

Under the new policy, L-2 spouses will be authorized to work incidental to their status. This means that upon admission and issuance of a valid I-94 document showing L-2 status, the L-2 spouse will automatically be authorized to work without the need to apply for an EAD.

• USCIS will coordinate with U.S. Customs and Border Protection (CBP) to ensure the L-2 spouse is issued an I-94 that is appropriately annotated as “spouse” so that it may serve as evidence of employment authorization for purposes of Form I-9 employment verification. As noted, this initiative may take up to 120 days to implement.
• In the interim and until CBP updates its I-94 protocols, L-2 spouses may benefit from an automatic extension of previously issued EADs under the same terms as outlined above for H-4 spouses.

Form I-9 Employment Verification

H-4 Spouses

Upon implementation of the policy, it is expected that H-4 spouses will be required to present the following documents as evidence of work authorization for Form I-9 employment verification purposes when seeking the EAD auto-extension:

• Expired EAD;
• I-765 extension application receipt notice showing the renewal application was timely filed; and
• Unexpired I-94 showing valid underlying H-4 status.

L-2 Spouses

Upon implementation of the policy, including CBP issuance of appropriately annotated I-94s for L-2 spouses, it is expected that nonimmigrant L-2 spouses will be permitted to present evidence of identity (such as a valid passport) together with a valid I-94 document appropriately annotated as an L-2 spouse for purposes of Form I-9 employment verification.

If an L-2 spouse seeks to avail themselves of the 180-day EAD auto-extension as an interim measure, the spouse will be required to present the following:

• Expired EAD;
• I-765 extension receipt notice showing the renewal application was timely filed; and
• Unexpired I-94 showing valid underlying L-2 status.

Additional Information

The EAD auto-extension benefit will only apply to H-4 and L-2 spouses who continue to have an I-94 document showing valid underlying H-4 or L-2 status after their EAD expires. This may limit the immediate benefit, due to very lengthy processing times for I-539 applications to extend H-4 and L-2 nonimmigrant status.  Additionally, H-4 spouses and others applying for an initial EAD still face egregious USCIS processing delays.  Nonetheless, this successful litigation causing USCIS to reverse harmful policies is welcome news for H-4 and L-2 nonimmigrants and their employers.  It is also hoped that the new policies will contribute to greater efficiencies at USCIS with respect to adjudicating I-539 nonimmigrant extension of status applications and EAD applications, generally.

USCIS intends to issue official guidance to employers and government agencies. As previously noted, it is expected to take up to 120 days to implement the policies, in whole or in part.  Gibney will continue to monitor implementation of the policies, and will provide updates. In the interim, if you have any questions, please contact your designated Gibney representative or email info@gibney.com.