USCIS Makes Work Authorization Easier for Certain Spouses

​Eligible spouses of professional and executive visa holders will receive automatic extension of their work authorization documents as a result of a proposed settlement of a lawsuit against U.S. Citizenship and Immigration Services (USCIS).

USCIS has changed its spousal employment authorization policies for H-4 and L-2 visa holders, allowing them to avoid employment gaps because of paperwork processing delays.

Eligible H-4 visa holders are dependents of H-1B workers who have been approved for an employment-based green card. These spouses have been allowed to obtain work permits since 2015. L-2 visas are held by the spouses of executives, managers or "specialized knowledge staff" who transfer within their company from abroad to an office in the U.S. L-2 visa holders have been allowed to work in the U.S. since 2002.

The two biggest changes include:  

• An automatic extension of work authorization for H-4 and L-2 visa holders who have filed for an extension of their employment authorization document (EAD) and have an unexpired visa status.
• The recognition that L dependent spouses are automatically work-authorized due to their status—without the need for an EAD—but only if they hold a Form I-94 arrival record specifically annotated to indicate their spousal status (which doesn't yet exist but is in the works).

Backlogs, Delays

A group of spouse-dependent visa holders sued USCIS in September over delays in renewing employment authorization documents needed for permission to work in the U.S.

Danielle Rizzo, an attorney in the Buffalo, N.Y., office of Harris Beach, explained that COVID-19 pandemic slowdowns on top of the Trump administration's more-stringent application requirements caused major backlogs for processing EADs. Many applicants, who are allowed to seek new work authorization only 180 days before their current eligibility expires, were forced to leave their jobs as delays stretched past six months.

"The current estimated wait time for these benefits is anywhere from nine to 14 months, resulting in numerous individuals losing their jobs, either temporarily or permanently," Rizzo said. "This problem is compounded by the fact that USCIS will not accept an EAD application filed more than six months in advance of the prior EAD's expiration date—virtually guaranteeing a gap in employment authorization for a period of at least three months, if not much longer. Employers of these individuals have no choice but to terminate their employment until a new card is issued."

Automatic Extension

Effective immediately, eligible H-4 and L-2 visa holders who have applied for new work authorization will receive an automatic extension of at least six months through the expiration date of their Form I-94.

"Importantly, eligible H-4 spouses will still need to apply for and receive EAD cards in order to be work-authorized," said Andrew Greenfield, Fragomen Worldwide managing partner based in the Washington, D.C., office. "The change for H-4 spouses is that when they are applying to renew their EAD cards, if the government has not issued a new card before the prior card expires—which happens a lot—the H-4 spouse may continue working for another 180 days beyond the expiration of the prior EAD card."

Greenfield added, however, that "in no case can an H-4 spouse work beyond the expiration of their underlying H-4 status; … it will remain crucial that H-4 extension requests are filed well in advance of status/I-94 expiration."

Robert Divine, leader of Baker Donelson's Global Immigration Group and an attorney in the firm's Washington, D.C., and Chattanooga, Tenn., offices, noted that H-4 spouses will continue to face "ridiculously slow" processing times, causing them to lose their work authorization and their job during a time when U.S. employers are already struggling with worker shortages.

That's because "often the EAD and the I-94 expire on the same day," he said. "The USCIS litigation settlement does not help the H or L spouse who filed to extend their status and to renew the EAD at the same time, and neither has been adjudicated before expiration, which is quite common."

Automatic Work Authorization for L Spouses

The biggest change for L spouses in the near future is that they will officially be able to work without restriction as soon as they enter the United States. Work eligibility will be approved as a condition of their visa status, and an EAD will not be required.

"USCIS has acknowledged what the Social Security Administration routinely has recognized for years: … spouses of L-1 workers automatically have unrestricted work authorization 'incident to status' without needing to apply to USCIS for any employment authorization document," Divine said.

He added that the settlement doesn't offer immediate relief to L-2 visa holders, as they will have to wait about four months for the government to create a new Form I-94 arrival record specifically identifying the person as an L-2 spouse. Until then, they will be required to have an EAD to work.

Greenfield said that even after the change is implemented, L-2 spouses generally only receive a new I-94 admission record upon an extension of stay granted by USCIS, or upon re-entering the United States after foreign travel, so L-2 spouses will continue to need to present EAD cards to work until they have received one of the new I-94 admission records showing their L-2 status as a spouse.

"In the meantime, just like H-4 spouses, L-2 spouses with timely filed EAD renewal requests may continue working for up to 180 days beyond the expiration of the prior EAD card in order to give the government time to process the EAD renewal request," Greenfield said. "Also, just like H-4 spouses, in no case can an L-2 spouse work beyond the expiration of their underlying L-2 status."