Biden Administration Settles with E, L, H Dependent Spouses Clearing them to Work Without EAD

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick provides a very exciting new update for E, L, and H-4 dependent spouses. USCIS has issued a new policy memorandum stating that the agency will automatically allow employment authorization for dependent E, L, and certain H-4 spouses of principal visa holders, without requiring spouses to file I-765 application for employment authorization to be eligible to work in the United States.

Keep on watching to find out more!

Overview

USCIS has now changed its policy to allow dependent E, L, and certain H-4 spouses to automatically qualify for employment authorization. The change came about after settlement of a lawsuit known as Shergill v. Mayorkas, No. 21-1296 (W.D. Wash.) filed against the government.

Pursuant to the settlement agreement reached with USCIS, E, L, and certain H-4 spouses will be eligible to work just by having their valid visas, and they will not need to file any separate applications nor need to apply for a separate employment authorization card (work permit) to seek employment in the United States.

Previously, USCIS required spouses of E, L, and H principal visa holders to apply for an employment authorization document (EAD) to lawfully work in the United States. Spouses were not granted employment authorization simply by having a valid visa in E, L, or H visa classification and were required to pay an additional filing fee of $410 to file the I-765 application for work authorization and wait for its approval.

Following the onset of the pandemic, USCIS began experiencing extreme delays and could no longer process I-765 applications for employment authorization in a timely fashion, taking in some cases 14 months or longer to issue EAD documents. Sadly, this resulted in job losses for many dependent spouses who were stuck waiting many many months to receive their EAD document to prove to their employers their eligibility to work in the United States.

The New Guidelines

The new USCIS policy memorandum discusses the following policy changes that will be implemented as of November 12, 2021:

  • Certain H-4, E, or L dependent spouses will qualify for an automatic extension of their existing employment authorization and accompanying employment authorization document (EAD) if they properly filed an application to renew their H-4, E or L-based EAD before their document expires and they have an unexpired Form I-94 evidencing their status as an H-4, E, or L nonimmigrant dependent;
  • The automatic extension of the EAD will continue until the earlier of: end date on Form I-94 evidencing valid status the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the prior EAD document; Form I-94, evidencing unexpired nonimmigrant status (H-4, E or L), Form I797C receipt for a timely – filed EAD renewal application stating “Class requested as “(a)(17),” “(a)(18) or ((c)(26)”, and the facially expired EAD issued under the same category);
  • E and L dependent spouses will be employment-authorized “incident to their status” and are no longer required to request employment authorization by filing Form I-765, but they may choose, if they wish, to file Form I-765 if they choose to receive an employment authorization document.
  • Any of the following documents will now be acceptable as proof of unexpired employment authorization for Employment Eligibility Verification (Form I-9) purposes:
  • Dependent spouses may provide their employers proof of: an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely-filed EAD renewal application, or facially expired EAD filed in the same visa classification.

Conclusion

This new policy change is without a doubt a significant victory for dependent spouses of E, L, and H visa holders, that will help boost our economy and prevent interruptions in the employment of such individuals. USCIS will be working closely with U.S. Customs and Border Protection to modify notations on the I-94 form of E and L dependent spouses entering the United States so as to streamline their eligibility for immediate access to employment in the United States without the need to file for or obtain separate employment authorization documents.

For more information about this new policy change please refer to our helpful links section below.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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