This new I-9 policy guidance is effective immediately.
Background and Introduction
As a result of a settlement agreement in a federal lawsuit, U.S. Citizenship and Immigration Services (USCIS) has made H-4, E and L dependent spouses qualify for a 180 day automatic extension or employment authorization incident to status, as applicable, when certain conditions are met. This is great news for thousands of dependent spouses and their employers.
180 Automatic Employment Authorization Extension: H-4, E and L Dependent Spouses
First, new USCIS guidance provides that H-4, E, or L dependent spouses qualify for 180 day automatic extension of their existing employment authorization and accompanying EAD- if they properly filed an application to renew their H-4, E, or L-based EAD before it expires. H-4, E and L dependent spouses will receive an automatic extension through the earlier of: (1) the expiration date of their valid E/H/L Form I-94; (2) the denial of their EAD renewal application; or (3) 180 days from the expiration of their previous EAD.
For Form I-9 employment eligibility verification purposes, the following combination of documents is acceptable:
Form I-94 indicating unexpired H-4, E or L dependent spouse status;
Form I-797C for a timely-filed EAD renewal application with a requested EAD category of (a)(17), (a)(18) or (c)(26); and
A facially expired EAD in the same category, i.e., (a)(17), (a)(18) or (c)(26).
Employment Authorization Incident to Status: E and L Dependent Spouses with Annotated I-94
Second, USCIS will begin to consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status, meaning an EAD or filing an I-765 is not required.
For Form I-9 employment eligibility purposes, revised Form I-94 will contain a notation indicating that the bearer is an E or L dependent spouse as distinguished from a child which will be acceptable as evidence of employment authorization under List C of Form I-9. USCIS is in the process of changing its systems so that it can do so. USCIS will recognize E and L dependent spouses as work authorized incident to their nonimmigrant status only if they hold an I-94 specifically annotated to indicate their spousal status meaning that they can be used to demonstrate employment eligibility; an E or L spouse presenting such an I-94 will also need to provide an acceptable identity document in order to complete the I-9 process. USCIS will continue to issue E and L dependent spouses EADs upon request via Form I-765 with the applicable I-9 requirements.
USCIS is issuing policy guidance in the USCIS Policy Manual to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. USCIS is updating its interpretation and implementation of 8 CFR 274a.13(d) to provide that certain H-4, E, or L dependent spouses will qualify for the automatic extension provided under this regulatory provision if certain conditions are met.
Provides that certain H-4, E, or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly filed an application to renew their H-4, E, or L-based EAD before it expires, and they have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable.
Provides that the 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.
Provides that 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 renewal application (Form I-765) 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).
Provides that 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 choose to receive an EAD.