USCIS Issues Guidance on Employment Authorization Available to Certain Nonimmigrant Dependent Spouses (H-4s, L-2s, and E-2s)
/Based on the recent settlement of the class action lawsuit Shergill v. Mayorkas, USCIS issued new policy guidance on November 12th, to be effective immediately, that provides automatic extensions of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses.
H-4 spouses may qualify for automatic extension of their existing employment authorization and accompanying EAD if they have properly filed an application to renew their H-4-based EAD before it expires, and they have an unexpired Form I-94 showing valid status as an H-4 nonimmigrant. If the applicant qualifies for automatic extension of their current employment authorization and EAD, the automatic extension will continue until whichever comes first:
The end date on Form I-94 showing valid H-4 status;
The approval or denial of the EAD renewal application; or
180 days from the “Card Expires” date on the face of the existing EAD.
When applicable, acceptable evidence of your automatic extension of employment authorization that may be presented to employers for Form I-9 purposes includes the following combination of documents:
Form I-94 indicating the unexpired H-4 nonimmigrant status;
Form I-797C indicating a timely-filed renewal Form I-765 was filed under (c)(26); and
The expired EAD issued under the same category, Category C26.
E and L dependent spouses will have employment authorization incident to their status. USCIS will be making changes to the I-94 for these visa holders to differentiate dependent spouses from dependent children so that the I-94 can be used to indicate employment authorization. Once that change is made, the I-94 will be acceptable as evidence of employment authorization for I-9 purposes. Until then, E and L spouses will need to use EAD cards as evidence of their employment authorization.
