USCIS Expands Work Authorization for Certain H-4 and L-2 Spouses

November 17, 2021

Pursuant to a settlement agreement reached on November 10, 2021 in a federal lawsuit, U.S. Citizenship and Immigration Services (USCIS) has changed its employment authorization policies with respect to some H-4 and L-2 nonimmigrants. The settlement provides structural changes for certain of these dependent spouses who have experienced long-delayed processing times for their EAD applications. The highlights from the settlement, as laid out in a USCIS policy alert, are:

• H-4 and L-2 spouses seeking to renew their EAD cards will be granted automatic renewal of their work authorization as long as: 1) their nonimmigrant status remains valid per their I-94, and 2) the EAD renewal application was filed with USCIS before their EAD expired. This automatic extension will be valid for up to 180 days beyond the expiration of the prior EAD, but will end sooner than that upon the earlier of either 1) the expiration of the applicant’s I-94, or 2) USCIS’ adjudication of the pending renewal application.
• L-2 and E-3D spouses will be considered authorized to work incident to status, meaning they will not require a separate EAD application, only once they are issued an I-94 admission record noting their status as an L-2 or E spouse. In the settlement agreement, USCIS and U.S. Customs and Border Protection (CBP) have committed to implementing these I-94 annotations within 120 days of the final settlement agreement. Further details will be provided in future USCIS policy guidance.
• H-4 spouses who are eligible for work authorization but are either 1) applying for their first-ever EAD card, or 2) submitting an application for a new EAD after their prior one has already expired will continue to be ineligible for work authorization until their application has been approved and the EAD issued.

The settlement agreement was entered into by the U.S. Department of Homeland Security and AILA (the American Immigration Lawyers Association) and its litigation partners. We will continue to track developments in this area.