United States Citizenship and Immigration Services (USCIS) has released updated guidance in recent months for E and L spousal work permit authorization.
These updated policies are a ramification of the settlement reached in mid-November in Shergill, et al. v. Mayorkas, which resulted in spouses of E and L visa holders being authorized to work incident to status.
The settlement and resulting updated policies should help thousands of individuals whose case adjudications have been delayed because of backlogs at USCIS, which stem from the COVID-19 pandemic and other factors.
Below are some frequently asked questions regarding the updated guidance for E and L spousal work permit authorization.
Does my spouse need to file for an Employment Authorization Document (EAD)?
L-2 and E (E-1, E-2 and E-3) dependent spouses no longer require an EAD to work. USCIS now considers employment authorization to be part of their L-2 and E (E-1, E-2 and E-3) status (other dependents will not have employment authorization).
Starting January 31, 2022, Customs and Border Protection (CBP) began issuing new I-94s at U.S. Ports of Entry for L and E dependent spouses with the new admission codes “L-2S” and “E-1S/E-2S/E-3S.” USCIS also began issuing I-797 approval notices with these new designations in the “Notice Type” box as well as on the I-94 attached at the bottom, as applicable. These I-94s with the new “S” designations serve as immediate proof of work authorization and are considered a List C document for I-9 purposes.
On April 1, 2022, USCIS also began issuing notices to E and L spouses who previously filed a Form I-539 with USCIS, which confirm and serve as proof of spousal work authorization when presented to an employer with an unexpired I-94. USCIS has instructed E and L spouses to e-mail E-L-married-U21@uscis.dhs.gov if they previously filed a Form I-539 but did not receive a notice by April 30, 2022.
A Form I-94 without the new spousal designation is NOT, alone, sufficient evidence of employment authorization in which case, a valid EAD (or in some cases a pending EAD Receipt Notice) is required for work authorization or the USCIS notice confirming work authorization.
If my spouse entered before January 31, 2022, will CBP issue a new Form I-94 with the spousal designation?
No. L and E dependent spouses who entered the U.S. before January 31, 2022, will need to travel internationally and re-enter the U.S. (or file a I-539 at the appropriate time) in order to be issued a new I-94 with the designation.
If my spouse needs to file an EAD, how long is USCIS taking to process the application?
The processing time for EADs varies depending on your nonimmigrant status and the different service centers. You can check the current processing times online. Given the lengthy processing times, it is important to note that since you cannot apply earlier than six months before your current EAD expiration date, you may experience a lapse in work authorization when applying for an EAD renewal if you are currently working and cannot otherwise obtain another means of work authorization.
If my spouse is required to file an EAD extension, is the timely filed renewal eligible for an automatic extension of employment authorization?
L and E spouses who have timely filed an EAD extension application are eligible for an automatic extension for the shorter of the following:
- 180 days from the expiration of the EAD
- The approval or denial of the EAD application
Or
- The I-94 date
For I-9 purposes, one can show the valid I-94, the expired EAD, and the receipt notice demonstrating that an EAD renewal has been filed.
What if my dependent nonimmigrant status (L-2S/E-2S) has not been approved yet?
You can still apply for an EAD or EAD renewal while your nonimmigrant status is pending, but your EAD will not be approved or issued until your nonimmigrant status is valid. Therefore, the combined processing time could be substantially longer because USCIS must adjudicate the nonimmigrant status first, and then the I-765 EAD.
Is premium processing available for my EAD?
No, unfortunately premium processing is not currently available for Form I-765.
Are there any other ways to expedite my EAD?
Yes, you may be eligible to submit an expedite request to USCIS, though the eligibility criteria are narrow. Expedite requests are given at the sole discretion of USCIS and are considered on a case-by-case basis. Additionally, you may request congressional assistance. Please see below for more details about these options.
What are the requirements for an expedite request?
An expedite request may be considered by USCIS, on a discretionary basis, in the following specific circumstances:
- Severe financial loss to company or person
- Urgent Humanitarian reasons
- Compelling US government reasons
- Clear USCIS error
Please note: USCIS is also allowing expedite requests for healthcare workers with pending EAD renewal applications and who have a current EAD that expires within 30 days or less or has already expired.
How do I request congressional assistance for my EAD?
As USCIS currently receives many expedite requests, Garfinkel Immigration Law Firm recommends contacting your congressional representative for assistance if you meet the above expedite request criteria. To request congressional assistance, you should reach out directly to the constituent services of a congressperson in your jurisdiction.
To determine the appropriate congressperson to contact, use this link to find your senators and this link to find your representatives. While there are no guarantees when submitting a request for expedite or for congressional assistance, these are currently the only available tools to shorten the wait for your EAD.