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USCIS Expands Work Authorization for E, L, and H-4 Dependent Spouses

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Background

In a policy alert published by USCIS on November 12, 2021, USCIS made two announcements in a promising attempt to alleviate the burdens faced by H-4, E, and L nonimmigrant dependent spouses experiencing severe delays in the issuance of work permits by USCIS. First, USCIS expanded the ability of E, H-4, or L nonimmigrant dependent spouses to qualify for an automatic extension of work authorization for up to 180 days. Second, USCIS announced that dependent spouses of those who hold an E or L visa are authorized to work pursuant to their status, and therefore no longer need a separate work permit.

Why is this policy change necessary?

According to USCIS’s own estimates, it can take well over a year for the agency to decide whether to issue a work permit (also called an employment authorization document, or EAD) to a nonimmigrant dependent spouse. This includes individuals who have previously received a work permit and are simply requesting that their work authorization be renewed. It also includes spouses who have already been issued a visa, and to whom Congress intended for USCIS to provide work authorization.

In its November 12th policy alert, USCIS acknowledged what many of us have known for a long time: that many of these dependent spouses “have been experiencing gaps in employment authorization because of USCIS backlogs and resultant delays in the adjudication of Forms I-765.” These gaps, USCIS admitted, “have a detrimental impact” on these individuals “as well as their current U.S. employers.”

The problem is not only that USCIS’ policy has had a detrimental impact on workers and employers. USCIS has also failed to uphold its obligation to L and E dependent spouses that Congress created for it by statute, which states that “ shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘employment authorized’ endorsement or other appropriate work permit.” To borrow USCIS’s own words, to continue the policy of extreme delays that were the norm prior to November 12 “will result in USCIS’ failure to meet the directive under the statute to grant employment authorization to this population.”

What was the USCIS announcement on November 12, and how does it impact E, L, and H-4 nonimmigrant dependent spouses?

On November 12, 2021, USCIS issued a policy alert that expanded employment authorization for dependent spouses who hold an E, H-4, or L visa. The announcement has two key focuses: first, USCIS expanded the ability of E, H-4, or L nonimmigrant dependent spouses to qualify for an automatic extension of work authorization for up to 180 days. Second, USCIS announced that dependent spouses of those who hold an E or L visa are authorized to work pursuant to their status, and therefore no longer need a separate work permit in addition to their visa.

Understanding USCIS’s expansion of automatic extension of work authorization for E, H-4, and L nonimmigrant dependent spouses

Under the terms of the policy announcement, how can E, H-4, or L nonimmigrant dependent spouses qualify for an automatic extension of work authorization?

E, H-4, or L nonimmigrant dependent spouses may qualify for an automatic extension of work authorization of up to 180 days if they have 1) filed an application to extend their work authorization before their current work permit expired, and 2) if they have an I-94 that has not expired.

It is important to note that, under the terms of the policy announcement, the automatic extension will apply only until the earlier of their I-94 expiring, their EAD renewal application being approved or denied, or 180 days after their EAD has expired.

I am the dependent spouse of an E-2 investor. My I-94 is about to expire, so I recently filed an application to extend my E-2 status and an application to renew my work permit. Does this new policy mean I can continue to work?

Since automatic renewal of work authorization requires that you have an unexpired I-94, the automatic renewal of your work authorization would only apply until your I-94 expires. Under the terms of the policy announcement, as soon as your I-94 expires your automatic extension of work authorization would also terminate. As a result, you would, at that point, need to wait to receive a renewed work permit before working.

I have filed an extension of my employment authorization document. What documents can I provide to my employer to show that I am eligible to work in the meantime?

For the purposes of verifying your employment eligibility to an employer, you can provide your unexpired I-94 form, your I-797 form showing that you timely filed a renewal of your employment authorization document, and your expired employment authorization document. The I-797 and expired employment authorization document should both show that you are authorized to work under the same class or category (class (a)(17), (a)(18), or (c)(26)).

Understanding USCIS’s announcement that L-2 and E nonimmigrant dependent spouses are authorized to work pursuant to their status

What does it mean that L-2 and E nonimmigrant dependent spouses are authorized to work “pursuant to their status?” Are there any limitations?

To be able to work “pursuant to one’s status” means that a visa status gives the visa holder the ability to work, without that person needing separate work authorization. In the words of the USCIS policy alert, “If E and L dependent spouses are considered employment authorized incident to status, they can engage in authorized employment immediately after obtaining status.”

For example, when a person receives an E-2 investor visa to develop and direct an E-2 business, they can work for and receive an income from the E-2 business upon their arrival in the United States. They are not required to also apply for a work permit. Before November 12, USCIS took the position that spouses of E-visa holders, as well as L-2 visa holders, did not receive work authorization pursuant to their status. Therefore, USCIS required that these individuals apply for and receive a work permit before working. On November 12, USCIS reversed course and announced that dependent spouses of those who hold an E or L visa are authorized to work pursuant to their status. However, such individuals must hold an I-94 that is specifically annotated show that they are the spouse of an E or L visa holder, a change that USCIS promises to implement in the coming four months.

I was just issued an E visa as a dependent spouse of an E-1 or E-2 visa holder, but I have not yet traveled to the U.S. Do I need to apply for work authorization when I arrive in the US?

Currently, the Form I-94 issued to an E nonimmigrant dependent child or spouse does not explicitly say whether the individual is a child or spouse of the principal holder of the E-visa. USCIS has stated that I-94 forms will begin showing this information within 120 days of the policy alert.

The USCIS policy alert states that it is only individuals who have a new version of the I-94 that is specifically annotated show that they are the spouse of an E or L visa holder who receive work authorization pursuant to status. As a result, it is recommended that you first look at your I-94. If your I-94 does not explicitly reflect your status as a spouse, you may need to apply for an EAD. If it does, there is no need to apply for work authorization.

Please note that there may nonetheless be a compelling argument that work authorization is not required for E-2 dependent spouses even if their I-94 does not reflect that they are a spouse. In fact, this was precisely the question that the Board of Immigration Appeals (BIA) considered in the 2013 case In re Do Kyung Lee, 2013 WL 6269308 (BIA Nov. 5, 2013). In that case, the BIA concluded that “the Act under section 214(e)(6) states that an E-2 spouse . . . shall be authorized to engage in employment,” while, at the same time, “the regulations addressing aliens who must apply for employment authorization do not state that an E-2 spouse is included.” It therefore appears that the BIA’s position is not consistent with that of USCIS with respect to the need for E-2 dependent spouses to secure an employment authorization document prior to engaging in employment in the United States. Of course, the consequences of working without authorization can be severe, and USCIS has continued to enforce its interpretation even though it conflicts with the BIA’s. As a result, the safest option is for an E-2 nonimmigrant dependent spouse to secure a work permit prior to working in the U.S. if they do not have an I-94 that is annotated to show that they are a spouse.

I am currently in the U.S. on an L-2 visa, or on an E-visa as a dependent spouse. My I-94 does not specifically note that I am a spouse. Do I still need to apply for an EAD?

Unfortunately, according to USCIS, you would still need to apply for an EAD since your I-94 is not specifically annotated to show that you are a dependent spouse.

I am the spouse of an E-visa holder. What documents should I provide to my employer to show I am eligible to work?

Once you receive a new I-94 that is annotated to show that you are the spouse of an E-visa holder, you will be able to provide the annotated I-94 and an acceptable document showing your identity in order to satisfy the I-9 requirement. If you would prefer to apply for an employment authorization document, that document alone is sufficient to satisfy the I-9 requirement (in other words, the EAD satisfies both the identity and employment eligibility requirements).

Are there any E visa holders for whom the new policy does not apply?

Yes. The policy announcement does not apply to spouses of E-2 Long-Term Investors in the Commonwealth of the Northern Mariana Islands (CNMI). It also does not apply to spouses of E-nonimmigrant employees of the Taipei Economic and Cultural Representative Office (TECRO) or the Taipei Economic and Cultural Officers (TECO). Individuals who fall into these categories must still acquire an EAD in order to work.

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