USCIS New Rule Adds H-4, E, L-2 Spouses Eligible for Automatic Extension of Employment Authorization: The Change is Welcome but Insufficient
On November 12, 2021, USCIS announced a new policy granting an automatic extension of employment authorization for H-4 (spouses of H-1 workers), L-2 (spouses of L-1 employees), and spouses of E status holders. USCIS Policy Alert, PA-2021-25, November 12, 2021 (Policy Alert). The change must be noted by every employer and worker. Not being aware of the new policy can lead to wrongful termination of employees and subsequent consequences. The change stems from a settlement agreement in Shergill, et al. v. Mayorkas, No. 21-cv-1295-RSM, as well as comments received in a notice and comment period. Except as noted herein, the change is effective immediately.
Currently, there are 15 categories that are eligible for an automatic 180-day extension of their employment authorization document (EAD), as stated in Handbook for Employers USCIS Form M-274 Part 4.4. Certain other non-immigrants are eligible for a 240-day extension of their status. Notably, H-4, E, and L-2 spouses are not included in those categories eligible for an automatic EAD extension.
Employment authorization and “status” are not the same.
Those who maintain certain categories of status are eligible to apply for employment authorization. In order for the employment authorization to be approved, the applicant must continue to have valid status. An H-4 spouse, for example, will not qualify to extend their EAD based on their H-4 status, if the H-4 status itself expires. Extending the underlying status itself is taking approximately 1 ½ years, meaning that such spouses are still likely to have a significant gap in their employment.
The changes announced November 12, 2021 provide that H-4, E, and L-2 spouses will be eligible for an automatic extension of their employment authorization until the earlier of:
- The end date of the validity period of their status as shown on their I-94, or
- The approval or denial of the pending EAD renewal application, or
- 180 days from the expiration of the expired EAD card
As such, the longest automatic extension would be for 180 days after expiration of the expired EAD card.
The employer will need to reverify work authorization at the earliest of any of those three events.
For I-9 purposes, individuals in these categories must show:
- Form I-94 showing unexpired status as H-4, E, or L-2 spouse (see below section on effective date re spouse designation), and
- Form I-797 receipt notice showing the EAD renewal application was filed prior to the expiration of the expired EAD, and was filed under the same category as the expired card: (a)(17), (a)(18), or (c)(26) as appropriate depending on which status is held, and
- The expired EAD showing both its expiration date and category
E and L-2 spouses will be employment authorized “incident to status”
Being authorized to work “incident to status” means that an employment authorization document separate from the I-94 showing status as an H-4, E, or L-2 spouse will no longer be required. The I-94 itself showing unexpired status in one of those categories will be sufficient, then, without also applying for an EAD.
Currently, however, the I-94 for E or L-2 status does not distinguish spouses from children of an E or L-1 principal. Children of an E or L-1 principal are not authorized to work. Consequently, USCIS in conjunction with Customs and Border Protection (CBP) will work to implement a process to notate that a specific I-94 is for a spouse.
Once the I-94 is annotated that it is for a spouse, the I-94 will be a List C document for I-9 purposes. According to the Shergill, et al. agreement, the change should happen within 120 days, or prior to March 10, 2022. In the meantime, E or L-2 spouses will continue to need to submit EAD applications.
The intended purpose of the change and the reality.
USCIS states the change to allow for extension of employment authorization for H-4, E, and L-2 spouses will help prevent gaps in employment authorization and “will provide additional stability and certainty to employment authorized individuals and their U.S. employers.” Policy Alert p. 4. The change should help reduce the backlog of pending EAD applications as well, because E and L-2 spouses will be authorized to work immediately upon obtaining status without then filing an EAD application and waiting for it to be adjudicated. Policy Alert p. 7. Again, that will be the case only after a new I-94 spousal notation is implemented.
The USCIS Policy Alert states:
[F]ailure to automatically extend employment authorization could result in loss of employment . . . , which is a potentially significant harm for the applicant and their U.S. employer.
Policy Alert p. 4.
USCIS acknowledgement of the “significant harm” caused by lengthy delays in processing EAD renewals is completely correct. However, while these changes are very welcome, they are insufficient.
The automatic extension will only be for a maximum of 180 days (approximately 6 months). The current EAD processing time is much longer, even nearly double that.
Numbers of employment-eligible workers from the 15 categories that already allow for a similar 180-day extension have been laid off to their severe hardship as well as the hardship of U.S. employers who need eligible and willing workers.
These layoffs are not the fault of the applicant who timely filed to renew their EAD, nor are they the fault of the employer who is diligent about complying with federal I-9 regulations. They are due directly and solely to USCIS lack of adjudicating the applications in a timely manner.
EAD cards are often based on the fact that another type of application, such as adjustment of status to permanent resident (“green card”), is pending, also waiting for USCIS adjudication. The EAD in that and many categories is “interim” employment authorization to comply with laws that allow for employment authorization while a different application is pending. In 2016 applications for adjustment of status were taking 90 days from filing to interview in the Seattle USCIS district. It now typically takes two years. Yet it’s taking upwards of a year to receive the “interim” EAD intended to allow applicants to work while the case is pending.
For several decades federal regulations required EADs be adjudicated within 90 days. See 8 C.F.R. §274(a).13(d). Effective January 17, 2017, USCIS simply eliminated that regulation. As a result of a number of policies over the past four years, including eliminating the 90-day processing time, workers and employers do face the significant harm that USCIS itself recognizes and seeks to ameliorate by adding H-4, E, and L-2 spouses to the categories eligible for an automatic extension of up to 180 days.
As part of the changes in the regulations that became effective January 17, 2017, the Department of Homeland Security (of which USCIS is a part) stated the 180-day extension will, “prevent any work disruptions for both the applicants and their employers.” Throughout the referenced regulations and policies, USCIS has been consistent that it would not take longer than 180 days to renew an EAD. It now does. It now can take twice that long. Even one day of unauthorized employment, even if inadvertent, can be fatal to many green card applications.
The 180-day timeframe is random, based on USCIS disbelief that it would ever take longer than that to renew an EAD. Because it now does take significantly longer, the 180-day period makes no sense. The reasonable solution is to extend employment authorization until the renewal application is actually adjudicated and the card received, or the worker’s underlying status ends.
On Monday, November 15, 2021, a putative class action suit was filed in the U.S. District Court for the Norther District of California, Case 3:21-cv-08742, by and on behalf of applicants challenging the “unlawful delays” in USCIS adjudication of EAD renewals for those with pending asylum applications.
The lawsuits will and should continue. Hopefully it will not become necessary for each of the employment-authorized categories of applicants to file a complaint in federal court. All that’s needed is for USCIS to acknowledge the 180-day timeframe isn’t based in law, and most definitely isn’t based in fact anymore, and to change its policy to allow for an automatic extension until such time as the application is actually adjudicated not an arbitrary 180-days.
In the meantime, I urge all employers and workers to monitor their EAD expiration dates carefully and see to it that they apply to renew the card 180 days prior to expiration. Then, with an additional 180 days of automatic extension, you may get close to receiving the new card with only a short gap in employment authorization.