Burr & Forman

01.4.2022   |   Blog Articles, Immigration Law Insights

USCIS Expands Automatic Employment Authorization Extensions and Nonimmigrant Categories Eligible to Work Incident to Status

Employment Authorization Document (EAD) processing times have been severely delayed in recent years, rendering certain dependent nonimmigrants temporarily ineligible to work and causing gaps in some U.S. employers’ workforces. An EAD can take over 12 months for adjudication under current processing times. Recently, USICS issued guidance expanding its automatic EAD extension rules to apply to additional foreign nationals. The agency further confirmed L-2 and E-2 dependent spouses are considered eligible to work “incident to status,” meaning they no longer require an EAD to work.

While automatic EAD extensions have been available to certain foreign nationals for some time—including those awaiting adjudication of their Adjustment of Status applications—H-4, L-2, and E-2 dependent spouses 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 work authorization for H-4, L-2, and E-2 spouses will be automatically extended if the individual (1) files an EAD renewal application before their prior EAD expires and (2) has an unexpired I-94 showing their nonimmigrant status. The automatic extension continues until the earliest of the end date on the individual’s I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the prior EAD.  Those seeking to utilize the new automatic extension can present the following documentation for I-9 purposes: (1) current I-94 showing a qualifying status; (2) I-797 Receipt Notice, demonstrating a timely filed I-765 application; and (3) the prior EAD.

USICS also announced E-2 and L-2 dependent spouses will not be required to file for an EAD to demonstrate work authorization in the future.  Under the new rules, E-2 and L-2 dependent spouses are considered authorized to work incident to their status. Those authorized to work “incident to 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 the newly revised I-94s can be used for I-9 purposes. Until CBP implements the I-94 changes, E-2 and L-2 spouses should continue to file for EADs.

The policy change should reduce USCIS EAD processing backlogs. Additionally, the expansion of nonimmigrant categories authorized to work incident to status should aid U.S. employers by reducing interruptions in employment.

Burr & Forman’s immigration team regularly assists clients with the EAD applications and other work authorization issues.  If you require assistance with immigration-related matters, contact Melissa Azallion Kenny (MAkenny@burr.com); Anna Scully (Ascully@burr.com); or Jon Eggert (JEggert@burr.com) from the Burr & Forman LLP immigration team.

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