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    4. EAD automatic extension and employment incident to status for certain non immigrant spousesArticles

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    EAD automatic extension and employment incident to status for certain non immigrant spouses

    Nov 19, 2021

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    By Brianna Thompson, Courtney New and Jason Gerrol

    DHS to allow certain non-immigrant spouses automatic extensions of employment authorization as well as employment incident to status.

    After enduring long U.S. Citizenship and Immigration Services (USCIS) processing times and often time gaps in employment, dependent spouses in H-4, L-2, E-1, E-2, and E-3 visa status will get relief due to a new Department of Homeland Security (DHS) settlement and related policy guidance. As background, these individuals are only eligible to apply for renewal of their Employment Authorization Document (EAD) within 180 days of their current EAD expiration. However, USCIS processing times have significantly exceeded 180 days over the last few years, resulting in the loss of work authorization for many individuals in these statuses. These gaps in employment authorization have been challenging not just for the individuals involved but also for their US employers.

    DHS’ settlement and new policy guidance will result in the following changes:

    USCIS will allow E-1, E-2, E-3, H-4, and L-2 spouses automatic extension of their EAD for up to 180 days past their current EAD expiration date if they have:

    • Filed an EAD renewal application (Form I-765) before their current EAD expires; and
    • Have valid status after their EAD has expired as evidenced by the expiration date on their I-94.

    The auto-extension would terminate the earlier of:

    • The expiration date on their I-94,
    • 180 days following the EAD expiration, or
    • The approval or denial of the EAD renewal application.

    To prove work authorization for Form I-9, these individuals will need to present the following:

    • A facially expired EAD indicating Category A17, A18, or C26;
    • Form I-797, Notice of Action for Form I-765 with Class requested indicating (a)(17), (a)(18) or (c)(26) and showing that the I-765 EAD renewal application was filed before the EAD expired; and
    • An unexpired I-94, showing valid nonimmigrant status.

    Employment authorization automatic with valid E-1, E-2, E-3, and L-2 status.

    USCIS has issued policy guidance granting E-1, E-2, E-3, and L-2 spouses work authorization incident to status. In other words, these spouses will not need to file a separate I-765 to obtain work authorization and are authorized to work upon admission to the United States. In order to be considered employment authorized incident to status, DHS must first modify the I-94 issued to these individuals to reflect their work authorized status, and is expected to make this change within 120 days of the November 10, 2021, settlement date. In the meantime, these spouses may qualify for an automatic extension of their EAD as described above. If you have any questions regarding these changes, please contact the NP Immigration team.

    ImmigrationLaw And Policy UpdatesLegislative And Court UpdatesI-9LitigationEmployment Authorization DocumentNonimmigrant Status

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