Employment Law Report
Biden Administration Makes Important Changes to Work Authorizations for Spouses of H, E, or L Visa Holders
By: Bethany Beal & Glen M. Krebs
Due to a new Biden Administration policy, certain spouses of H-4, L, or E visa holders will no longer face interruptions to their employment. The new policy can be found here. Highlights of the new policy include the following:
Certain H-4, E, or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying Employment Authorization Document (“EAD”). They must file an application to renew their H-4, E, or L-based EAD before it expires, and they must have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable.
Automatic extension of the EAD will continue until the earlier of:
- the end date on Form I-94 showing valid status;
- the approval or denial of the EAD renewal application; or
- 180 days from the date of expiration of the previous EAD.
The following combination of documents evidence the automatic extension of the previous EAD, and are acceptable to present to employers for Form I-9 purposes:
- Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L);
- Form I-797C for a timely-filed EAD (Form I-765) renewal application stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26);” and
- The facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).
E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they so choose.
As a result of this new policy, employers should face fewer workforce disruptions due to delayed approvals of employment authorization. This change will help not only such H-4, E, and L dependent spouses, but also their employers and coworkers who might also feel the negative impact of disruption in the dependent spouses’ lapse in employment authorization. Employers of such dependent spouses will be able to maintain continuity in the workplace in a way they could not prior to this change.
This new policy alert supersedes a 2002 INS memorandum which required E and L spouses to receive an EAD before commencing employment. E and L dependent spouses may still file a Form I-765 to request an EAD but it is no longer a requirement. The Department of Homeland Security (“DHS”) is currently modifying Form I-94 to differentiate between dependent spouse and dependent children. When these changes are made to Form I-94, the form will be evidence of employment authorization for Form I-9. However, until these changes are made, dependent spouses must rely on an EAD for evidence of employment authorization.
The policy changes are part of a settlement agreement reached in a lawsuit filed on behalf of immigrant spouses against DHS. This policy change will prevent gaps in the employment of H-4, E, and L dependent spouses. Due to the backlog of immigration applications, many applicants were forced to take a leave of absence from work because of the lapse in employment authorization. With employment authorizations automatically extending, the burden on both families and employers should be eased.
