Thursday, November 18, 2021

USCIS Policy Alert: Employment Authorization of Certain E, L, and H Spouses

USCIS has issued a Policy Alert, and has updated its Policy Manual accordingly, to explain how its recent settlement in Shergill, et al. v. Mayorkas will be applied in practice for the spouses of E, L, and H nonimmigrants. USCIS will automatically extend EADs for E, L, and H spouses, and within 120 days of USCIS’s policy alert, grant E and L spouses employment authorization incident to status. USCIS expressed its hope that eliminating the requirement of filing Form I-765 for E and L spouses will help reduce USCIS’s adjudication backlogs.

 Automatic Extensions of EADs for E, L, and H spouses

Beginning November 12, 2021, the EADs of E, L, and H spouses will be automatically extended for a period of up to 180 days if:

  • The spouse properly filed an Application for Employment Authorization (Form I-765) for a renewal of their E, L, or H spouse-based EAD before the current EAD expired; and
  • The spouse has an unexpired Form I-94 indicating valid E, L, or H dependent status.

Duration

Automatic extension of E, L, and H spouses’ EADs will terminate automatically on the earliest of:
  • The end of the validity period of the nonimmigrant status, as shown on the Form I-94;
  • The approval or denial of the Form I-765 application to renew the EAD; or
  • 180 days from the date of the expiration of the previous EAD.

E and L Spouses Authorized for Employment Incident to Status

With a new notation on Form I-94, to be implemented within 120 days of USCIS’s Policy Alert, E and L spouses will be authorized to work automatically if the spouse maintains valid E or L status. The new I-94 notation will (1) differentiate an E or L spouse’s status from that of a child; and (2) authorize the E or L spouse to work.

USCIS has rescinded its previous 2002 policy that required E and L spouses to apply for Employment Authorization using Form I-765 and receive a valid Employment Authorization Document (EAD) card in order to work. However, a Form I-765 may still be filed by E and L spouses if they wish to receive an EAD.

Once CBP implements its I-94 notation of spouse status, a valid E or L spouse I-94 will be sufficient proof of work authorization.

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