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Some Overdue, but Limited, Relief for Working H-4, L-2 & E Spouses

The USCIS (US Citizenship & Immigration Service) announced a new rule to aid in the recent dilemma many foreign national families and US employers have confronted; namely addressing the gap in work authorization and corresponding loss of income many families face and the disruption in staffing and productivity that employers experience as a result of lapses in work authorization for foreign national spouses due to lengthy adjudications of their Employment Authorization Document (EAD) cards.
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The USCIS announced that effective immediately, L-2 and E spouses will be able to work incident to their status, meaning that they will not need to request and wait for an EAD card to begin or continue work. But, there are limitations. Specifically, updates to the I-9 Employment Eligibility Verification Form have not yet been implemented to correspond to the change, and changes to the I-94 admission record that would designate a spouse (as opposed to a child) have not been made yet. The USCIS also announced that certain H-4 spouses’ EAD cards will automatically extend up to 180 days after their expiration if a timely EAD extension application is filed. But, under current processing times, that extension may not be long enough to ensure continuity of employment authorization.

L-2 and E Spouses

Under the new rule, L-2 and E spouses are able to work automatically, incident to their status. Generally, this means that an L-2 and E spouse can meet their I-9 obligations by showing a foreign passport and an I-94 admission record showing they are an L-2 or E “spouse.” But, I-94’s do not distinguish between an L-2 and E spouse or child. Thus, the USCIS and CBP (Customs and Border Protection Patrol) will revise the I-94 system by March 10, 2022 to show this distinction. Until then, L-2 and E spouses must continue to show an EAD card to prove work authorization. For those applying for an initial EAD (as opposed to an EAD extension), this can be problematic since EADs can take over 1 year to process currently.

Under the new rule, if an L-2 or E spouse files to extend his/her EAD before its expiration, the EAD is automatically extended until the earlier of: (1) 180 days from the expiration of the current EAD, (2) L-2 or E I-94 expiration, or (3) the approval or denial of the EAD extension application. For I-9 purposes, the L-2 or E spouse would show a foreign passport, I-94 record showing L-2 or E status, the expired EAD card, and the Receipt Notice showing that it was timely filed and for the same EAD category, (a)(17) or (a)(18).

This is certainly helpful, but there are two main wrinkles of which to be aware. First, the automatic extension of the EAD ceases to be valid once the I-94 expires. Generally, an L-2 and E can only apply to extend their status up to 6 months in advance, and some L-2 extensions are currently taking 7-9 months, and E extensions are currently taking over one year to adjudicate. Thus, their I-94’s will expire while waiting for their extensions to be processed. Although they will be in an “authorized period of stay” in the US while the extension application is pending, their work authorization will lapse.

Second, EAD adjudications can take over 1 year under current processing times. The automatic EAD extension is only up to 180 days. So, it is likely that the automatic extension will expire before the new EAD card arrives, which could cause a lapse in work authorization.

Once the I-94 system is updated to show who is an L-2 and E “spouse” (as opposed to child), L-2 and E spouses will no longer have to apply for EAD cards since their work authorization will be automatic and will be shown with their passport and I-94 card. Nevertheless, spouses can still apply for an EAD card if they wish. Many like them for additional identification, to aid in travel, and to make it clearer to employers that they are authorized to work.

H-4 Spouses

H-4 spouses may be eligible for EADs if their spouse is in H-1B status and is the beneficiary of an approved I-140 immigrant petition for alien worker. Under the new rule, if an H-4 spouse files to extend his/her EAD before its expiration, the EAD is automatically extended until the earlier of: (1) 180 days from the expiration of the current EAD, (2) I-94 expiration, or (3) the approval or denial of the EAD extension application. For I-9 purposes, the H-4 spouse would show a foreign passport, I-94 record showing H-4 status, the expired EAD card, and the Receipt Notice showing that the extension of the EAD was timely filed and for the same EAD category, (c)(26). The same two wrinkles explained above also apply here to H-4 EAD’s. Namely, due to lengthy H-4 extension adjudications, the H-4 spouse’s I-94 could expire while waiting for the extension to be approved, thus, ending the automatic extension of the EAD work authorization. In addition, EAD adjudications are currently significantly backlogged, and, thus, the EAD may arrive well past the 180-day auto extension period, causing a gap in work authorization.

Consular Process To Extend Status or Departure and Return with a Valid Visa Stamp

Although L-1, E principal applicants, and H-1B applicants can petition for initial or extended status with Premium Processing and have a response within 15 days, their spouses’ cases are adjudicated separately, and Premium Processing is not available. As discussed above, the spouses’ cases are currently subject to lengthy processing delays, and, without a current I-94/status, there is no work authorization. However, spouses have an alternative processing option worth exploring to extend their status. Once the H-1B, L-1, or E principal applicant receives his/her approval notice and assuming the spouse does not have a valid visa stamp, the spouse can take that and his/her marriage certificate and apply for his/her new or extended spousal status (to match their spouse’s new or extended expiration date on the approval notice), directly at a US Consulate or Embassy abroad. Pre-pandemic, this was a realistic and reactively simple, and quick option. Currently, due to COVID-related Consular closures and workforce reductions, Consulates are severely backlogged in issuing visa appointments abroad. Thus, it could take several months to obtain a visa appointment abroad to extend H-4, L-2 or E status.  Further, due to COVID-related travel restrictions globally (including testing, vaccine, and quarantine requirements), international travel is complicated. Nevertheless, in the hopes that these COVID-related conditions will be alleviated soon, the Consular process to extend status is worth considering. Once the spouse obtains a new visa at a Consulate abroad, they can enter the US and obtain new I-94 showing the newly extended spousal status and expiration date, which can then be used for work authorization pursuant to the rules explained above.

If a spouse has a valid visa stamp showing the L-2, E, or H-4 derivative status, the spouse can depart the US and return with evidence of the principal applicants’ extension of status (this means the USCIS approval notice) and marriage certificate. Generally, the spouse should be admitted into the US for the same I-94 admission period held by the principal applicant. With that new I-94 admission period, the automatic EAD extension can run the full 180 days or until the approval or denial of the EAD extension application.

Before any departure from the US, please check with your immigration counsel to ensure the departure will not create other issues for returning and also to confirm you have the appropriate paperwork to be admitted to the US.

If you have any questions, please contact Berin Romagnolo at berin.romagnolo@arentfox.com or Nancy Noonan at nancy.noonan@arentfox.com.

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