March 18, 2022 Update: This announcement is an update to the original story that was published on Nov. 10, 2021 and updated on Feb. 7, 2022.
U.S. Citizenship and Immigration Services (USCIS) has announced that it will update policy guidance in the USCIS Policy Manual to clarify the documentation that certain E and L nonimmigrant dependent spouses may use as employment authorization evidence incident to their status. USCIS is updating its policy guidance to clarify a modification announced in November 2021 that considered E and L spouses to be employment authorized based on their valid E or L nonimmigrant status. USCIS has added new guidance on Class of Admission (COA) codes that will be used to distinguish between E and L children and spouses. The codes were implemented by Customs and Border Protection (CBP) for use on I-94 documents on Jan. 31, 2022. The guidance, which is located in Volume 10 of the USCIS Policy Manual, is immediately effective. E and L spouses who have an unexpired Form I-94 issued by USCIS before Jan. 30, 2022 will receive a notice in the mail on or after April 1, 2022. The notice, along with an unexpired Form I-94, will suffice as evidence of employment authorization for individuals with E-1, E-2, E-3, E-3D, E-3R or L-2 nonimmigrant status.
On Jan. 31, 2022, Customs and Border Protection (CBP) implemented new E and L Class of Admission (COA) codes. Spouses of E and L holders will now have the new codes applied to their CBP I-94 documents These new codes on an I-94 document will serve as evidence of U.S. work authorization and legal status. We are awaiting USCIS to release guidance to allow employers to update the I-9 using these new codes. Once released, an individual can obtain and present an I-94 document evidencing their valid status with the new code to an employer to evidence work authorization. An Employment Authorization Document (EAD) will no longer be required by the Department of Homeland Security for eligible nonimmigrants under this practice.
This update relates to the settlement agreement reached in Shergill v. Mayorkas recognizing that L and E spouses are employment authorized incident to status.
Additional information about the new COA admission codes, including guidance to complete I-9 verification, is expected to be available soon.
Following a recent settlement, U.S. Citizenship and Immigration Services (USCIS) will expand eligibility for employment authorization for L-2 spouses and certain H-4 spouses.
A settlement was reached in Shergill, et al. v. Mayorkas that may benefit H-4 and L-2 spouses who seek employment authorization in the U.S.
What are the Changes?
It’s important to know that the outcome of the settlement is different for H-4 and L-2 EAD applicants. A summary of the applicable results can be found below by impacted status type.
These changes are effective Nov. 10, 2021, but employers may wait for USCIS guidance on how these changes will be reflected in I-9 employment eligibility directions.
L-2 EAD Beneficiaries
No later than March 10, 2022, USCIS and Customs and Border Protection (CBP) must update the I-94 form for L-2 spouses to show that it serves as a List C document for I-9 purposes. L-2 spouses will then be eligible to work by presenting the I-94 in conjunction with a List B document for I-9 verification. The expiration of work authorization is linked to the expiration on the I-94. This new procedure will replace the requirement to hold a valid Employment Authorization Document (EAD), which could sometimes take up to 12 months from initial or renewal application to process.
For existing L-2 beneficiaries in the U.S. who are currently holding an expired EAD but have evidence of a timely filed extension and an unexpired I-94 showing L-2 status, an extension of up to 180 days beyond the expiration date of the current EAD is granted. If the applicant’s current L-2 status expires less than 180 days after the expiration of the current EAD, then the extension of employment authorization will expire on the same date as the L-2 status. If the application for the new EAD is denied, employment authorization will cease as of the date of the denial.
Previously, USCIS policy did not grant any automatic employment authorization extension to L-2 EAD holders while their Employment Authorization Document (EAD) application was pending.
Despite this relief, L-2 EAD holders still cannot work past the expiration date of their I-94. Delayed USCIS processing times for L-2 applications will still mean that many individuals with pending L-2 applications will not be able to work past their I-94 expirations even if the automatic EAD extension timeline advances past that timeline.
H-4 EAD Beneficiaries
H-4 holders will be eligible for an extension of their employment authorization for up to 180 days beyond the expiration of their current EAD while their application for an extension of the EAD is pending, if they have an unexpired I-94. If the applicant’s current H-4 status expires less than 180 days after the expiration of the current EAD, then the extension of employment authorization will expire on the same date as the H-4 status. If the application for the new EAD is denied, employment authorization will cease as of the date of the denial.
Previously, USCIS policy did not grant any automatic employment authorization extension to H-4 EAD holders while their EAD application was pending.
Despite this relief, H-4 EAD holders still cannot work past the expiration date of their I-94. Delayed USCIS processing times for H-4 applications will still mean that many individuals with pending H-4 applications will not be able to work past their I-94 expirations even if the automatic EAD extension timeline advances past that timeline.
USCIS will update I-9 Employment Eligibility directions to account for the above changes.
Although the settlement is a significant reversal of previous USCIS policy and should theoretically benefit affected spouses, H-4 dependents may still face some challenges given delayed processing times. Without premium processing service for dependent applications and related EADs and severe processing backlogs at USCIS, processing times will continue to take many months.
USCIS will issue new guidance reflecting these updated policies. Further information may become available as these new policies take effect.
Envoy is pleased to provide you this information, which was prepared in collaboration with Amanda Bolhuis, Ian Love and Susannah Nichols, who are Partners at Global Immigration Associates (GIA), one of the two independent U.S. law firms Envoy exclusively works with on the Envoy Platform (the "U.S. Law Firms").
Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an attorney at one of the two U.S. Law Firms working with the Envoy Platform or another qualified professional. On non-U.S. immigration issues, consult an Envoy global immigration service provider or another qualified representative.
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