USCIS Extends Automatic Employment Authorization Extensions and Qualifying Non-Immigrant Categories from Work Incident to Status | Burr & Forman

Employment Authorization Document (EAD) processing times have been significantly delayed in recent years, rendering some dependent non-immigrants temporarily ineligible for work and causing labor shortages for some U.S. employers. An EAD can take more than 12 months for adjudication within the current processing times. Recently, USICS issued guidelines expanding its EAD automatic extension rules to apply to other foreign nationals. The agency further confirmed that L-2 and E-2 dependent spouses are considered eligible to work “because of their status”, meaning they no longer need an EAD to work. .

While automatic EAD extensions have been available to some foreign nationals for some time, including those awaiting review of their status adjustment requests, dependent spouses H-4, L-2 and E -2 have historically been forced to stop working if their EAD extension is not approved before their initial EAD expires. On November 12, 2021, USCIS announced that the work authorization for spouses H-4, L-2 and E-2 will be automatically extended if the person (1) files an EAD renewal application before the expiration of their previous EAD and (2) has an unexpired I-94 showing their nonimmigrant status. Automatic extension continues until the earliest end date on the individual’s I-94 indicating valid status, approval or denial of the EAD renewal request, or 180 days from the expiration date of the previous EAD. Those wishing to use the new automatic extension may submit the following documentation for I-9 purposes: (1) current I-94 indicating qualifying status; (2) I-797 Receipt Notice, demonstrating a timely filed I-765 application; and (3) the previous EAD.

The USICS also announced that E-2 and L-2 dependent spouses will not be required to file an EAD application to demonstrate work authorization in the future. Under the new rules, E-2 and L-2 dependent spouses are considered authorized to work because of their status. Individuals authorized to work “because of their status” are eligible to work in the United States by virtue of their immigration status alone and are not required to obtain additional approval from USCIS. Customs and Border Protection (CBP) is currently working to distinguish E-2 and L-2 spouses from E-2 and L-2 children on I-94s, so that the newly revised I-94s can be used for I-9 purposes. Until CBP implements the I-94 Amendments, spouses E-2 and L-2 must continue to file EAD requests.

The policy change is expected to reduce processing delays for USCIS EAD. Additionally, expanding the categories of non-immigrants permitted to work because of status should help U.S. employers by reducing job disruptions.

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