Changes to E, H4 & L2 Work Authorization Rules
Following a recent settlement in a federal lawsuit, USCIS has issued new policy guidance regarding spousal work authorization. The new rules apply to E, H-4 and L-2 spouses, making it easier for some of these spouses to obtain and retain work authorization in the US.
This is a welcome development for E, H-4 and L-2 workers and their employers, allowing them to avoid disruption to their employment due to USCIS processing delays.
What are the changes?
Following a settlement agreement reached in the case of Shergill et al, v Mayorkas, U.S. Citizenship and Immigration Services (USCIS) has confirmed changes to its policy on E, H-4 and L-2 employment authorization document (EAD) applications. While the case related to H-4 and L-2 visa holders, USCIS has extended the policy to include E visa spouses.
In summary, the changes are as follows:
E visa spouses
The new guidance sees employment authorization and EADs for E dependent spouses automatically extended, in the same way as H-4 and L-2 dependents. Provided a timely extension application has been made, the extension will take effect automatically from the earliest of either when the Form I-94 expires, the decision in the underlying EAD renewal application is made, or 180 days from the previous EAD’s expiration.
The guidance also confirms that E dependent spouses will be recognized as having employment authorization ‘incident to their status’ if they hold a Form I-94 arrival record specifically annotated to indicate their spousal status. This means they would not need to have an EAD to work. However, until an E spouse has received an annotated I-94, they will continue to require an EAD to be able to work. The Department of Homeland Security are in the process of starting to issue I-94s with spousal annotations.
H4 visa holders
Qualifying H-4 visa holders will be eligible for their employment authorization document (EAD) to be automatically extended, provided they file their renewal application on time and that their H4 status is valid and will continue beyond their current EAD expiry. The auto-renewal date will end on the earliest of either:
- Their current end of H-4 status date per the I-94
- The date of the approval or denial of their EAD renewal
- 180 days from the current expiration date of their EAD
However, H-4 nonimmigrants who file their EAD renewal at the same time as their I-539 extension may only receive a shorter auto-extension to the end of their current I-94 date.
L2 visa holders
Currently, L-2 visa holders are eligible to apply for EADs as soon as they are granted L-2 status but they are not permitted to lawfully start work until their EAD application has been approved.
Under the new rules, this interpretation of the current regulations is being altered to allow L-2 visa holders to work lawfully without the need for an EAD, with some limitations. Effectively, this means USCIS will deem L-2 visa holders to be work-authorized by reason of their status and by holding a valid I-94 stating that the L-2 holder is the spouse of an L-1 nonimmigrant.
As a result of this development, the Department of Homeland Security will start to issue L-2 visa I-94s, which specify that the holder is a spouse of an L-1 visa holder.
L-2s who do not hold an I-94 specifically noting their spousal status will still need an EAD to work until they are issued a new I-94 with a spousal annotation. The annotation may be provided when applying to extend the L-2 EAD or from a new I-94 issued after reentry to the USA.
The same auto-extension rules will apply to L-2 EAD renewals as to H4 visas, namely that the L-2 holder must have filed their L-2 EAD renewal application before its expiry while continuing to hold L-2 status beyond their current EAD expiration. The auto-extension duration rules are also the same as for the H-4 visa.
Other employment visa spouses
This agreement relates only to the E spouse, H4 and L2 dependent visas. Separate legal action is currently going through the courts relating to delays for spousal EADs and for adjustment of status-based EAD applications for other employment-based spouse visas.
Need assistance?
Our US immigration attorneys provide guidance on employment authorization for visa holders and their spouses. For specialist advice, contact us.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
