H-4 and L-2 EAD Work Authorization Victory & Updates
Update: March 18, 2022
USCIS has announced that they will be issuing a notice beginning on or about April 1, 2022 to E or L spouse age 21 or over who has an unexpired Form I-94 that the agency issued before Jan. 30, 2022. This notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization. If you are an E or L spouse and under 21, or if you have not received your notice by April 30, email E-L-married-U21@uscis.dhs.gov to request a notice.
The agency has confirmed that it will only send notices to individuals identified as qualifying spouses based on a Form I-539 approved by USCIS. Individuals who received their last Form I-94 record from U.S. Customs and Border Protection (CBP) should visit www.cbp.gov.
Update: February 7, 2022
The American Immigration Lawyers Association’s CBP Liaison Committee has confirmed with Systems Enforcement Analysis and Review (SEAR) that CBP has started to implement the following new Codes of Admission on January 31, 2022 for spouses and children of E and L visa holders pursuant to the Shergill v. Mayrokas litigation settlement. The following categories were created:
E-1S – Spouse of E-1
E-1Y – Child of E-1
E-2S – Spouse of E-2
E-2Y – Child of E-2
E-3S – Spouse of E-3
E-3Y – Child of E-3
L-2S – Spouse of L-1A or B
L-2Y – Child of L-1A or B
Please note that this change is only applicable to new arrivals. CBP will not be able to change already issued I-94s at deferred inspection sites since they are only available for correction-based mistakes. If someone already inside the United States wishes to have the new designation, they will be required to depart the United States and re-enter. Although not necessarily required, SEAR recommended that E and L spouses travel with proof of the marriage relationship to assure that the correct status is issued in the system.
For those individuals who have applied for L or E dependent status within the US, I-797 Approval Notices from USCIS should also contain new codes on the attached Form I-94.
Changes for I-9 Authorization
USCIS has updated its I-9 and E-Verify sites to reflect this change in policy. USCIS Policy Manual, Chapter 2: Employment-Based Nonimmigrants, reflects the change. The policy manual notes that “[a]s of November 12, 2021, USCIS considers E-1, E-2, E-3 and L-2 dependent spouses employment authorized incident to status.” However, a Form I-94 solely notated with the following types of nonimmigrant statuses: “E-1,” “E-2,” “E-2C,” “E-3,” “E-3D,” “E-3R,” or “L-2,” IS NOT SUFFICIENT to serve as evidence of employment authorization.
The M-274 Handbook for Employers for Form I-9 completion was updated on November 16, 2021, regarding the Settlement, but this update was done before the creation of the COA codes noted and focused on the automatic extension of L and E spouse work authorization part of the Settlement described below that still required a valid EAD. We need these COA codes to be addressed by USCIS as to the Form I-9 and E-Verify sections of the USCIS website.
Update: February 3, 2022
The American Immigration Lawyers Association’s CBP Liaison Committee has confirmed with Customs and Border Protection Headquarters (CBP HQ) that new E and L Class of Admission (COA) codes were implemented on January 31, 2022. Upon entry, the I-94s generated for the spouses of E and L holders will reflect this change.
Unfortunately, there is no update yet regarding how L and E spouses who were admitted before January 31, 2022 could change their COA to reflect their work authorization that is incident to their status. However, we will continue to post updates as the situation develops.
Update: December 2, 2021
As of the time of this writing, we are still waiting on USCIS to issue guidance on how exactly the agency, along with Customs and Border Protection (CBP), will be updating the Form I-94s for L or E dependent spouses. However, the agencies have confirmed such guidance will be issued within 120 days from November 10, 2021, which means more details should come no later than March 10, 2022.
Once these changes are made, L or E dependent spouses will be allowed to use their I-94 record directly for Form I-9 purposes as a List C document. How exactly this change will be made is unclear, as written or stamped annotations are unlikely to be secure. DHS may use data from the Consular Consolidated Database to create the electronic I-94, but it remains unclear how any annotation would be made for Canadian citizens entering the US on L-2 status, or for L or E spouses in the United States, whose I-94 is listed on their I-797 approval notice.
In the meantime, while DHS comes up with a solution to this issue, it is best practice for employers to continue to request an EAD for L or E dependent spouses in order for them to begin or continue their employment.
Update: November 15, 2021
On November 12, 2021, the U.S. Citizenship and Immigration Services (USCIS) released a policy alert clarifying these new changes to H-4 and L-2 EAD—and indicating they are effective immediately.
Importantly, they announced that L and E dependent spouses qualify for work authorization incident to status. This means that both L and E dependent spouses no longer need to file an I-765 to obtain an EAD, although USCIS cautioned that dependent spouses presently still need to rely on an EAD for I-9 purposes until USCIS revises Form I-94 to indicate whether L or E dependents are spouses or children.
DHS will immediately take steps to modify Forms I-94 evidencing nonimmigrant status issued to E and L dependents so that E and L dependent spouses can be distinguished from E and L dependent children on the face of the document. Until then, USCIS will continue to issue E and L dependent spouses EADs upon request via Form I-765; such EADs are acceptable for Employment Eligibility Verification (Form I-9) as List A documents (documents evidencing both employment authorization and identity). 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 accepted as evidence of employment authorization under List C of Form I-9.
An important caveat to understand is that for H-4 EAD holders (and current L or E spouses with work permits who may be affected), the USCIS has clarified that the automatic extension of the EAD will extend to the earlier of (1) the end date listed on the Form I-94; (2) 180 days from the date of expiration of the previous EAD; OR (3) approval or denial of the EAD renewal application. This means EAD holders whose I-94 expiration dates end at the same time as their EAD cards will not be able to take advantage of the automatic extension due to the limitations imposed by the first scenario as noted above.
Initial Post: November 11, 2021
On November 10, 2021, the Department of Homeland Security (DHS) reached a settlement with major implications for L-2 and H-4 spouse work permits. The settlement has successfully changed the longstanding immigration policy and means H-4 and L-2 spouses can now more easily obtain and renew their employment.
In the past, the U.S. Citizenship and Immigration Services (USCIS) required L-2 spouses to obtain an Employment Authorization Document (EAD) by filing Form I-765, although the law indicates that employment authorization is incident to status for L-2 spouses. With this settlement, USCIS has now accepted that statutory interpretation. Moving forward, L-2 spouses will be automatically authorized to work as soon as they enter the United States on L-2 status, and they will not need to obtain employment authorization. There should be new I-9 guidance forthcoming as well on this topic.
As for H-4 visa holders, USCIS previously failed to grant automatic extensions to H-4 EADs, although they met the regulatory requirements for the automatic extension. This settlement ensures that H-4 spouses with EADs are now correctly understood to meet the regulatory requirements for an automatic extension of employment authorization. What this means is that H-4 visa holders whose EADs expire before their immigration status, and who have a renewal on file, will now see their work authorization automatically extended, so they will maintain work authorization as long as they are in valid H-4 status. Here as well we are still waiting for updated guidance.
For L-2 and H-4 spouses, this settlement means a major victory and that work authorization will be easier to obtain and renew, a victory for immigrants and US employers.
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