U.S. Citizenship and Immigration Services (USCIS) has updated its Policy Manual after it entered into a legal settlement this week in Shergill, et al v. Mayorkas. The settlement makes significant changes to the work authorization process for the spouses of high-skilled workers in the U.S.

Under the settlement and the subsequent USCIS guidance, E and L spouses will not have to apply for an Employment Authorization Document (EAD) to work in the U.S. In addition, E, L, H-4 spouses will be provided automatic 180-day EAD extensions if they meet certain conditions.

Key Points:

  • Work Authorization Incident to Status – E and L spouses. Effective today, Nov. 12, USCIS considers E-1, E-2, E-3, and L-2 dependent spouses employment authorized incident to status.
    • Though E and L spouses are now technically work authorized incident to status, they must still present evidence of work authorization to an employer to comply with Form I-9 obligations when that verification is required.
    • As of now, a Form I-94 solely notated to reflect E-1, E-2, E-3, or L-2 status is not acceptable for I-9 purposes as evidence of work authorization. This is because the current version of the Form I-94 does not distinguish between dependent spouses and children.
    • DHS said it would “immediately take steps to modify” the Form I-94 such that it will constitute evidence of work authorization, and the settlement said this must be done within 120 days. Until that is in place, E and L spouses will have to present an EAD for I-9 purposes.
  • Automatic 180-Day EAD Extensions – E, L, H-4 spouses. Beginning today, Nov. 12, the EAD of E, L, and H-4 dependent spouses will be automatically extended for up to 180 days if the spouse (1) properly filed an EAD renewal application before the current EAD expired; and (2) has an unexpired Form I-94 indicating valid E, L, or H-4 derivative status.
    • Automatic extensions are only valid until the foreign national spouse’s I-94 expires, so the benefit is limited to foreign nationals whose I-94 will remain valid beyond the expiration of their EAD.
    • For additional information on the length of the automatic extensions and the combination of documents that will be acceptable for I-9 purposes, please consult your BAL professional or the USCIS Policy Alert or Policy Manual update.

BAL Analysis: E spouses were not specifically addressed in the settlement agreement, so the addition of E categories in the USCIS guidance is a significant development. BAL will continue to monitor developments related to the settlement, including DHS’ work to update the Form I-94 so that it can be used for verification of employment eligibility in the Form I-9 process. BAL will provide additional information as it becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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