Employment Authorization Extensions Announced

Employers have a lot of responsibility on a daily basis, and being aware of recent employment authorization extensions announced by the U.S. Citizenship and Immigration Services in November of 2021 is important to be aware of. These changes affect primarily some H-4, E, and L nonimmigrant dependent spouses. The change is considered to be in large part due to a recent court settlement and is in effect until the policy is officially modified.

Employment Authorization Extensions Announced

In November 2021, the USCIS issued policy guidance in regard to their Policy Manual that addresses automatic extensions of employment authorization for some H-4, E, and L nonimmigrant dependent spouses.

Highlights of the new policy include:

• Some H-4, E, or L dependent spouses may be eligible for automatic extension of their current employment authorization and EAD if they filed a renewal application for their EAD before it expired and they have an unexpired Form I-94.
• Automatic extensions of EADs may be allowed until one of the following occurs first: the Form I-94 expires, the EAD renewal application is approved or denied, or it is 180 days past the expired EAD.
• Documents for Form I-9 purposes can include a specific combination of documents including an unexpired I-94 nonimmigrant status, Form I-797 for timely filed Form I-765, and expired EADs, all under specifically designated categories.
• Establishes that E and L dependent spouses as employment authorized incident to their status and do not have to complete the Form I-765, though may still pursue it if they wish.

What Employers Need to Know About H-4 Employment Authorization Documents

The U.S. Citizenship and Immigration Services’ announcement of employment authorization extensions affects H-4 employment authorization document (EAD) beneficiaries in the following ways:

• Those individuals that hold an H-4 may be able to extend their employment authorization up to 180 days past the expiration date of their current EAD while their EAD extension application is pending, if they have an unexpired I-94.
• If the individual’s H-4 status is set to expire in less than 180 days after their current EAD expires, their employment authorization extension will expire when the H-4 status does.
• Should an individual’s request for a new EAD be denied, they will no longer be authorized to be employed.

What Employers Must Know About L-2 EAD Beneficiaries

Another population affected by the USCIS’ recent announcement about employment authorization extensions is L-2 EAD beneficiaries. The policy for these individuals is as follows:

• USCIS and Customs Border Protection (CBP) will update the I-94 form by March 10, 2022 to be acceptable as a List C document for the Form I-9. This in turn will allow L-2 spouses to be eligible for work when presenting a List B document and I-94 for Form I-9 verification. The individual’s authorization for employment then becomes dependent on the I-94 expiration date.
• Existing L-2 beneficiaries currently in the United States who have an expired EAD but have filed for an extension in a timely manner and also have in their possession an unexpired I-94 detailing L-2 status, may receive an up to 180-day extension beyond their current EAD’s expiration date.
• If an individual’s L-2 status expires in less than the 180 days after the EAD expiration date, their employment authorization will be set to expire when their L-2 status does.
• Those individual’s who apply for a new EAD and are denied, will no longer have employment authorization effective the exact date of that denial.

What Employers Should Know About E Beneficiaries

Although not included in the initial announcement by the USCIS on November 10, 2021, two days later the entity issued policy guidance regarding work authorization coverage for E-1D, E-2D, and E-3D spouses. For the most part it mirrors that of the guidelines issued for L-2 EAD beneficiaries.

Updated policy for work authorization coverage regarding E dependent spouses is:

• In terms of their EAD, those individuals who have documentation that they filed an EAD renewal in a timely fashion and that have valid Form I-94 evidencing E status should qualify for an automatic extension of their current EAD.
• After the Form I-94 changes by the USCIS and CPB expected to go into effect by sometime in March 2022, these spouses can also use their valid I-94 for work authorization evidence for I-9 purposes or still apply for an EAD.

These employment authorization extensions announced by the USCIS are just one example of some of the changes that can impact Form I-9 compliance. It is critical for employers to find a reliable and trustworthy source so they can keep abreast of important changes like these. Questions about these changes should be directed to a respected company with experience in U.S. immigration and/or a digital I-9 compliance software. Look for a company that has the industry knowledge who intimately understand the complexities of Form I-9 compliance.