H-1B cap filing season is nearly upon us. so employers should move swiftly to identify…
This month brought some much-needed relief to the spouses of many visa holders who have been waiting for employment authorization document renewals. While the changes are welcome, there are still some issues that need to be resolved by the U.S. Citizenship and Immigration Services (USCIS) to fully address the delays that many spouses experience in trying to obtain and renew work permission.
Following a federal lawsuit and settlement agreement, USCIS has implemented changes to the way it views work authorization for H-4, L-2 and E-2 spouses, and provided some relief to these spouses who have been waiting for employment authorization document renewals.
Among the major changes announced are the following three items:
1. H-4 visa holders with Employment Authorization Documents will get an automatic extension
H-4 dependents who have been previously granted H-4 work authorization will be eligible for an automatic extension of their Employment Authorization Document (EAD) upon filing a timely request for renewal, so long as the applicant maintains valid H-4 status. Under new guidance, the H-4 EAD auto-renewal date will end on the earliest of:
- The end date of the individual’s H-4 visa status as noted on Form I-94
- The date of approval or denial of the Form I-765 EAD renewal application, OR
- 180 days from the date the current EAD expires.
Please note that this rule does not change which H-4 visa holders are eligible for employment. Only H-4 visa holders whose H-1B spouse has an approved I-140 or is past the sixth year in H-1B status will qualify.
2. L-2 and E-2 spouses will not need an EAD
Beginning soon, L-2 and E-2 spouses will be authorized for employment without having to obtain an EAD. This will become effective as soon as the Department of Homeland Security can update their systems to indicate on the I-94 record that the E-2 or L-2 visa holder is indeed a spouse that is work authorized. L-2 and E-2 spouses who do not hold an I-94 with the annotation will still need an EAD to work unless and until they are issued an endorsed I-94.
3. Some L-2 and E-2 spouses currently waiting for EAD renewals will receive Automatic extension
L-2 and E-2 spouses that are currently awaiting EAD extensions can take advantage of the 180-day automatic extension policy noted above for H-4 visa holders. Please note however, that in order to qualify for the automatic extension, the L-2 or E-2 visa holder must have a valid I-94 document to provide to an employer. Thus, those individuals who concurrently filed L-2/E-2 and EAD renewals and have not received a new I-94 will not be eligible for the automatic extension until the new I-94 is issued. If the new I-94 is issued more than 180 days after the EAD has expired, no automatic extension is available.
This shift in policy applies only to H-4, L-2, and E-2 dependent spouses and does not apply to children. Separate legal action is currently pending as to other eligibility categories for employment authorization. We will provide updates if more visa categories become impacted by this litigation.
A review of this memo shows that it is a good start, but may not serve as a practical solution for many impacted spouses. This is largely due to the fact that USCIS is no longer adjudicating dependent visa extension requests along with the principal visa holder. For many years, USCIS would approve family members together, meaning that dependent H-4, L-2 and E-2 family members would have extension requests approved right along with the principal visa holder. However, a change in policy during the Trump administration requiring dependent family members to attend biometrics appointments effectively decoupled these applications.
Shortly after President Biden was elected, USCIS announced that they were doing away with the biometrics requirement, but they still continue to process H-4, L-2 and E-2 dependents separate from family members. Should USCIS go back to the process of approving family members together, this policy change will have far greater impact, as all of these classes of dependent visa holders will need a valid I-94 to take advantage of the new policies.
Until that time, however, dependent family members will face longer processing times and may need to make difficult choices in order to obtain the valid I-94 required to maintain work authorization. Given the long delays that dependent visa holders are experiencing in renewals, the new policy is likely to force couples to secure an approval of the principal applicant’s E-2, L-1 or H-1B and then force the spouse to undertake international travel, visit a consulate, and re-enter the U.S. in order to obtain the required I-94 to take advantage of the automatic EAD extension. E-2 and L-2 spouses will be able to work without an EAD once the I-94 records can be annotated to indicate that the visa holder is indeed a spouse (this is expected to be implemented in the next 120 days).
However, H-4 spouses are not as fortunate as the memo only provides a 180-day EAD extension, and it is possible that they may still end up losing work authorization given the long delays that H-4 visa holders are experiencing in EAD renewals, and the fact that H-1B and H-4 extensions can only be filed six months in advance of expiration. Thus, it is important that H-1B and H-4 visa holders wishing to maintain work authorization apply for renewal as early as possible.