United States: USCIS Issues Policy Guidance on E, H-4, and L Spousal Work Authorization, Confirms that Auto-Extension of Spousal EADs Has Immediate Effect

Effective immediately, USCIS is implementing an automatic extension of employment authorization document (EAD) validity to E, H-4, and L-2 spouses who have filed a timely application to extend an EAD and have an unexpired Form I-94 entry record for E, H-4 or L nonimmigrant status. 

Eligible E, H-4 and L-2 spouses will receive an automatic extension through the earlier of: (1) the expiration date of their valid E/H/L Form I-94; (2) the approval or denial of their EAD renewal application; or (3) 180 days from the expiration of their previous EAD.

For Form I-9 employment eligibility verification purposes, the following combination of documents is acceptable:

• Form I-94 indicating unexpired H-4, E or L status;
• Form I-797C for a timely-filed EAD renewal application with a requested EAD category of (a)(17), (a)(18) or (c)(26); and
• A facially expired EAD in the same category, i.e., (a)(17), (a)(18) or (c)(26).

In addition, USCIS will recognize E and L dependent spouses as work authorized incident to their nonimmigrant status – i.e., without the need for an EAD – but only if they hold a Form I-94 arrival record specifically annotated to indicate their spousal status. The Department of Homeland Security does not currently issue I-94s with spousal annotations; it is in the process of changing its systems so that it can do so. Until an E or L spouse receives such an I-94, they will be required to have an EAD in order to work. E and L spouses who receive an I-94 with a spousal annotation will be able to file Form I-765 and request an EAD if they want one.

When the new spousal I-94s are issued, they will qualify as List C documents for Form I-9 purposes, meaning that they can be used to demonstrate employment eligibility; an E or L spouse presenting such an I-94 will also need to provide an acceptable identity document in order to complete the I-9 process.  An E or L spouse who requests and obtains a USCIS EAD will continue to be able to present it as a List A document, demonstrating both identity and employment eligibility.

The policy on work authorization incident to status does not apply to spouses of E-2 Long-Term Investors in the Commonwealth of the Northern Mariana Islands (CNMI) or to dependents of E nonimmigrant employees of the Taipei Economic and Cultural Representative Office (TECRO) or the Taipei Economic and Cultural Offices (TECO), who must continue to hold an EAD in order to work.