USCIS Implements Decision Vacating Public Charge Final Rule

As of November 12, 2021, USCIS considers E-1, E-2, E-3 and L-2 dependent spouses employment authorized incident to status.

To obtain an Employment Authorization Document (EAD or Form I-766) evidencing both identity and employment authorization, such dependent spouses may file an Application for Employment Authorization (Form I-765).

E and L dependent spouses are issued an Arrival-Departure Record (Form I-94) by USCIS or U.S. Customs and Border Protection (CBP). Form I-94 solely notated with “E-1,” “E-2,” “E-2C,” “E-3,” “E-3D,” “E-3R,” or “L-2” nonimmigrant status is insufficient to evidence employment authorization.

Validity Period

USCIS has discretion to establish a specific validity period for employment authorization, though not to exceed certain amounts of time in some circumstances. USCIS generally grants the Form I-766 with a validity period that aligns with the applicant’s Form I-94 expiration date, not to exceed 2 years for E and L dependent spouses, or 3 years for H-4 dependent spouses.

Applications to Renew Employment Authorization, EADs, and Automatic Extensions

Beginning November 12, 2021, the EAD of an E and L dependent spouse, and employment authorization and EAD of an H-4 dependent spouse, will be automatically extended for a period of up to 180 days if:

• The dependent spouse properly filed an Application for Employment Authorization (Form I-765) for a renewal of their E, L, or H-4 dependent spouse-based EAD before the current EAD expired; and
• The dependent spouse has an unexpired Form I-94 indicating valid E, L, or H-4 derivative status.

Any such automatic extension will terminate automatically on the earlier of:

• The end of the validity period of the nonimmigrant status, as shown on the Form I-94;
• The approval or denial of the application to renew the previous EAD using Form I-765; or
• 180 days from the date of the expiration of the previous EAD.

The following combination of documents evidence the automatic extension of the previous EAD:

• The facially expired previous EAD stating Category A17, A18, or C26, as applicable;
• A Notice of Action (Form I-797C) for Form I-765 with Class requested in the same category as the expired EAD (either “(a)(17),” “(a)(18),” or “(c)(26),” as applicable), and showing that the renewal application was filed before the EAD expired; and
• An unexpired Arrival-Departure Record (Form I-94) reflecting H-4, E, or L derivative status, as applicable.

With this document combination, the expired EAD is considered unexpired and acceptable as evidence of identity and employment authorization for completion of Employment Eligibility Verification (Form I-9). Reverification of employment authorization is required at the end of the automatic extension period.

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