On November 12, 2021, the Department of Homeland Security (DHS) issued a policy alert that addressed the automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses.
8 CFR 274a.13(d) of the Immigration & Nationality Act (INA) provides that employment authorization, Employment Authorization Documents (Form I-766 or EAD), or both, may be automatically extended under certain circumstances. After examining this regulation, the Department of Homeland Security (DHS) issued new policy guidance qualifying certain H-4, E, or L dependent spouses for the automatic extension provided under this regulatory provision. To qualify, the H-4, E, or L dependent spouses must:
- Properly and timely file an application to renew their H-4, E, or L-based EAD before the EAD expires, and
- Have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable.
The automatic extension of the EAD will continue until the earlier of:
- The end date on Form I-94 showing valid status,
- The approval or denial of the EAD renewal application, or
- 180 days after the expiration of the previously issued EAD.
The following combination of documents will evidence the automatic extension of a previously issued EAD, and is acceptable to present to U.S. employers for Form I-9 verification purposes:
- Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L), and
- Form I-797C, evidencing timely-filed application to renew employment authorization (Form I-765), and which states the “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and
- The facially expired EAD had to have been issued under the same category (that is, indicating Category A17, A18, or C26).
USCIS clarified that it will consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status.
Therefore, these classifications of nonimmigrant dependents are no longer required to request employment authorization by filing Form I-765. However, they may continue to file Form I-765 if they choose to receive an EAD.
