A settlement agreement reached between the Department of Homeland Security (DHS) and the American Immigration Lawyers Association (AILA) and its litigation partners in a lawsuit would lead to significant changes in the employment authorization process for certain H-4 and L-2 spouses. The changes would provide relief to certain H-4 and L-2 spouses from delayed employment authorization (EAD) application adjudications.
The terms of the settlement are applicable to all L-2 spouses, and qualifying H-4 spouses who have properly filed a Form I-765 to renew their H-4 EAD, have an unexpired H-4 period of stay on their I-94, and will continue to have H-4 status beyond the expiration date of their EAD. Some of the key changes resulting from the settlement are as below:
A. Automatic Renewal of Employment Authorization for Applicants with Valid H-4 Status
Qualifying H-4 spouses who timely file their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD will qualify for automatic extension of their employment authorization and EADs. Such auto-extensions will terminate on the end date of the individual’s H-4 status as noted on Form I-94, or upon the approval or denial of the Form I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD, whichever is earlier.
USCIS will also issue appropriate guidance to employers stating that to complete Form I-9, these individuals may present a combination of the following documents to their employers as an unexpired EAD
- Expired EAD indicating Category C26
- Form I-797C, Receipt Notice for the Form I-765 filing – the Receipt Notice must show the Class Requested as (c)(26), and that the Form I-765 EAD renewal application was filed before the EAD expired
- Unexpired Form I-94 showing valid H-4 nonimmigrant status
USCIS will also amend the Receipt Notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.
B. Employment Authorization Incident to Valid L-2 status and Automatic Extensions of EADs:
USCIS will issue policy guidance stating that L-2 spouses are employment authorized incident to their status.
L-2 spouses who timely file their I-765 EAD renewal applications and continue to have L-2 status beyond the expiration date of their EAD will qualify for automatic extension of their EADs. Such auto-extensions will terminate on the end date of the individual’s L-2 status as noted on Form I-94, or upon the approval or denial of the Form I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD, whichever is earlier.
USCIS will also issue appropriate guidance to employers stating that EAD auto-extensions apply to L-2 spouses who continue to have L-2 status after their L-2 EAD expires. To complete Form I-9, these individuals may present a combination of the following documents to their employers as an unexpired EAD
- Expired EAD indicating Category A18
- Form I-797C, Receipt Notice for the Form I-765 filing – the Receipt Notice must show the Class Requested as (a)(18), and that the Form I-765 EAD renewal application was filed before the EAD expired
- Unexpired Form I-94 showing valid L-2 nonimmigrant status
USCIS will change the Form I-94 to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes.
If you have any questions regarding employment authorization for nonimmigrant dependents, or need help filing a Form I-765 to request an EAD, contact VisaPro Law Firm today. Our experienced immigration attorneys will be happy to assist you.
Mark Westcott, United Kingdom
