One of the drawbacks of our current immigration system is that most spouses accompanying foreign workers are not allowed to work until they are well advanced in the “green card” process. Often people spend years on temporary work visas and their spouses find it difficult to use their talents or meet people because they cannot work. This restriction is particularly infuriating in a tight labor market.
Some visas allow spouses to work, the most common being:
E for certain investors and international trade players
L for people transferred within the company.
Spouses of H-1B holders (professional workers), who hold H-4 status are allowed to work if the “green card” process has advanced to a certain point.
As useful as it may be, in recent years the processing times for Work Authorization Documents (EADs) have become excruciatingly slow. Spouses have to wait several months to initially receive EADs and often experience gaps in the work authorization when extending EADs upon expiry, as they can only submit their case six months in advance.
On November 12, the U.S. Citizenship and Immigration Service (USCIS) announced a policy change regarding the work authorization of E, L, and some H-4 spouses. While USCIS recognizes the problem, the solution is far from ideal.
The new policy
The new policy includes two changes:
Spouses in categories E and L are recognized as authorized to work “because of their status”, which means that they are no longer required to obtain an EAD (subject to a warning regarding the documentation explained below. below).
Spouses in categories E, L and H-4 extending existing EADs may be eligible for an automatic extension of the work permit upon filing in certain limited situations.
E and L work “incident to status”
While a fair reading of the law allows spouses E and L to work in the United States, USCIS has for many years taken the position that an EAD is required. The new policy recognizes that spouses E and L do not need an EAD for authorization to work. It allows them to continue requesting EADs if they wish and offers a limited automatic extension of an expired EAD, as described below.
Unfortunately, the policy does not end there. Since USCIS is also the agency that promulgates the I-9 Employment Eligibility Verification Form, the policy addresses what documentation will be considered sufficient to prove work authorization to an employer. .
It indicates that an I-94 arrival / departure record indicating E or L status can be used as a C-list document for I-9. To complete Form I-9, the spouse will need to provide List B identification, such as a valid driver’s license or state issued identification.
Because E or L status children are not authorized to work, USCIS has found it necessary to modify I-94 to indicate that the person offering this document is a spouse. This change must be made in conjunction with US Customs and Border Protection (CBP), which issues I-94s on arrival in the United States.
According to the new policy, until such a change is made, the E or L I-94 should not be used as an I-9 document.. This restriction may arise from employers requesting more or different documents than required for the I-9, such as proof that the employee is the spouse of an E or L visa holder, in potential violation of the regulations. anti-discrimination rules. , or it could simply be the fear that an older child will fall through the cracks and work.
Since children must be under 21 to have E or L dependent status, the number of situations in which confusion could arise would be low. An employee’s date of birth is shown on I-94 and most documents on List B.
How US Immigration and Customs Enforcement (ICE), the agency responsible for inspecting and imposing fines for I-9 violations, will treat an employer who accepts an I-94 for a Joint E or L before the planned I-94 change is implemented remains to be seen, as this change will be confusing for anyone except the most diligent I-9 preparers.
180 day automatic extension
In many situations, USCIS has allowed an automatic 180-day extension of an expiring EAD if the extension request is filed on time. This policy has alleviated concerns about the slowness of processing in these cases, although expedited applications are sometimes still necessary to avoid job cuts.
Until recently, USCIS had to rule on EAD requests within 90 days. In 2016, this rule changed to remove any arbitration delay.
The new policy states that if the spouse files an EAD extension before the current expires and has an I-94 that is valid for E, L or H-4 status beyond the EAD expiration date, the EAD is automatically extended up to 180 days. Unfortunately, this helps few people.
In most cases, the spouse’s status and the EAD expire at the same time. Only in an unusual situation, such as when the spouse’s I-94 is longer due to international travel, would the automatic extension occur. The language of the applicable regulations prevents USCIS from providing more robust automatic extension.
Because the automatic extension is limited to the I-94 expiration date, the date a decision on the extension is made or 180 days, depending on what happens first, employers relying on it will need to monitor the progress of the application, which is not necessary for other automatic extensions.
Fortuitous victory in dispute
The policy change was announced two days after the settlement in Shergill, et al. v. Mayorkas, in which a federal court in Seattle ordered USCIS to implement the same changes for spouses L and H-4. The new policy includes E spouses, who had been included in another lawsuit filed days earlier.
To be fair, USCIS had requested input from the public in April 2021 to identify barriers to benefits and services. The political orientation cites the response to this demand as the basis for change.
The new policy is another example of the power to respond to both agency requests for comment and litigation. Allowing spouses E and L to work regardless of status will reduce some of the backlog, which is the real solution to the H-4 EAD problem. If USCIS can reduce the processing times to 90 days or approve the H-4s and associated EADs simultaneously with the H-1Bs, the automatic extension would not be necessary. However, if this policy is the first step in this direction, it is welcome.