On November 12, 2021, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Alert and new policy guidance addressing Employment Authorization Document (EAD) auto-extensions for H-4, E, and L spouses and to clarify that E and L dependent spouses will be considered work authorized incident to nonimmigrant status. USCIS confirmed that the Department of Homeland Security (DHS) will take steps to modify Forms I-94 to distinguish E and L dependent spouses from E and L dependent children. Until Forms I-94 are updated, E and L spouses will continue to require an EAD (or an automatically extended EAD) as evidence of employment authorization. Under the terms of a settlement entered into on November 10, 2021, the changes to L-2 Forms I-94 will be made within 120 days.
The new policy will permit the extension of H-4 spouse work authorization in certain circumstances. Prior policy dictated that H-4 spouses must hold a valid EAD in order to be considered work authorized, and lengthy government processing times for EAD renewals often led to a gap in employment authorization. Under the new interpretation, USCIS will automatically extend the H-4 spouse’s EAD if a renewal application is timely filed and the H-4 spouse continues to hold an unexpired Form I-94. The auto-extension will terminate on the earlier of: the H-4 status as noted on Form I-94, the approval or denial of the EAD renewal application, or 180 days from the expiration date of the facially expired EAD.
USCIS will also consider L-2 and E-2 spouses who have timely filed for EAD renewal to be work authorized past EAD expiration, with the same limitations described above for H-4 spouses.
No provisions with regard to work authorization in the settlement or the Policy Alert apply to H-4, E, or L dependent children.