Employment Law Report
USCIS Policy Changes Remove Hurdles to Employment Authorization
By: Glen M. Krebs
On November 12, 2021, the United States Citizenship and Immigration Services (USCIS) announced that spouses of E and L visa holders were no longer required to apply for an Employment Authorization Document (EAD) to work in the United States. Instead, L-2 and E dependent spouses are authorized to work in the United States just by virtue of holding L-2 or E status. They may continue applying for EADs, if desired.
This USCIS policy change has been a welcome improvement, but it did not automatically create a system that provided L-2 and E dependent spouses with documentation needed to prove they can lawfully work in the United States. Specifically, the government did not provide L-2 and E dependent spouses with documents needed to complete Form I-9 which is required by the employer.
In order to alleviate this problem, USCIS and U.S. Customs and Border Protection (CBP) have begun annotating L-2 and E entry and approval documents (Form I-94) with an “S” designation to indicate that the holder is a dependent spouse and thus eligible to work. The documents with an “S” designation can be used by L-2 and E dependent spouses to show employers they are authorized to work in the United States. If an L-2 or E dependent spouse receives an entry or approval document without an “S” designation, please contact us so that we can attempt to correct the issue.
The USCIS policy announcement also allows certain H-4 spouses to obtain automatic extensions of their EADs for up to 180 days. The automatic extension also applies to L-2 and E dependent spouses who choose to apply for an EAD as proof of work authorization.
These changes are a significant departure from USCIS’s previous policy, which required L-2 and E dependent spouses to apply and wait for an EAD to be issued before they could begin working. In addition, L-2, E, and H-4 dependent spouses were not previously eligible for automatic EAD extensions. Given that government processing times for EADs can be a year or more, L-2, E, and H-4 dependent spouses regularly experienced long periods of unemployment while they waited for their EADs to be approved.
In addition, changes are coming to Form I-9. It will expire on October 31, 2022. Feel free to contact a member of our Immigration team for information about the upcoming changes.