On November 10, 2021, the Department of Homeland Security signed a settlement agreement that will change how the United States Citizenship and Immigration Services (USCIS) interprets employment authorization regulations for certain H-4 and L-2 nonimmigrants. This change is expected to go into effect March 10, 2022.
Automatic Extensions for H-4 and L-2 Employment Authorization Documents (EAD)
Specifically, this change will affect certain H-4 nonimmigrant spouses who are eligible for EAD/employment authorization cards and L-2 spouses who timely file their I-765 applications to renew their employment authorization documents and continue to hold the underlying H-4 or L-2 status beyond the expiration date of their current EAD. They will soon qualify for an automatic extension of their employment authorization. The auto-extension will terminate on the earlier of:
- The end date of their H-4 or L-2 status;
- The approval or denial of the I-765 EAD renewal application; or
- 180 days from the expiration date listed on their current H-4 or L-2 EAD.
USCIS is planning to amend receipt notices issued to H-4 nonimmigrant spouses who apply for the I-765 EAD renewal to detail their eligibility for the auto-extension.
Anticipated Implementation of Employment Authorization Incident to Valid L-2 Status
Under the settlement agreement, the USCIS will issue policy guidance stating that L-2 dependent spouses are employment authorized incident to status. Eventually this will eliminate the need for L-2 spouses to file applications for their employment authorization documents, which have long delays in processing times. USCIS will also work with U.S. Customs and Border Protection to change the Form I-94 within 120 days (by March 10, 2022) so that the L-2 dependent spouse will be able to use the Form I-94 as a List C document to confirm work authorization for Form I-9 purposes.
Related I-9 Considerations for the H-4 and L-2 EAD Extensions
Employers must also complete the Form I-9 reverification at the earlier of either the end date on Form I-94, the date that the I-765 is approved or denied, or the 180th day of the EAD auto-extension period.
Automatic Extensions Will Not Apply to L-2 or H-4 Nonimmigrant Spouses with Pending I-539 Applications
It is important to note that the automatic extensions for L-2 nonimmigrant spouses and certain H-4 nonimmigrant spouses apply only if the individual currently has valid L-2 or H-4 nonimmigrant status. This means that dependent spouses whose I-94 have expired, but have a timely filed and pending I-539 application to extend their L-2 or H-4 status, will not be able to take advantage of the automatic extensions for employment authorization.
USCIS is expected to release additional guidance on the settlement agreement. Duane Morris attorneys will report on more detailed guidance as it is released.
For More Information
If you have any questions about this Alert, please contact any of the attorneys in our Immigration Law Group, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
