On November 12, 2021, U.S. Citizenship and Immigration Services (USCIS) updated its Policy Memo to automatically allow for employment authorization for dependent E, L and certain H-4 spouses of principal visa holders, and it further rescinded its 2002 Memorandum which did not permit dependent spouse E, L or certain H-4 visa holders from being automatically authorized to work in the United States. No longer will E, L or H dependent visa holders be mandated to apply for employment authorization cards to evidence work authorization in the United States. Our previous alert regarding the updated memo may be found here.

Clarification from USCIS and the inclusion of E-1, E-2, and E-3 visa holders follows:

The new Policy Memorandum of November 2021 allows for –

• Certain H-4, E, or L dependent spouses to qualify for an automatic extension of their existing employment authorization and accompanying employment document (EAD) if they properly filed an application to renew their H-4, E or L-based EAD before the document expires and they have an unexpired Form I-94 evidencing their status as an H-4, E, or L nonimmigrant;
• The automatic extension of the EAD will continue until the earlier of: end date on Form I-94 evidencing valid status the approval or denial of the EAD renewal application or 180 days from the date of expiration of the prior EAD document; Form I-94, evidencing unexpired nonimmigrant status (H-4, E or L), Form I797C receipt for a timely – filed EAD renewal application stating “Class requested as “(a)(17),” “(a)(18) or ((c)(26)”, and the facially expired EAD issued under the same category);
• E and L dependent spouses are employment-authorized incident to their status and no longer required to request employment authorization by filing Form I-765, but they may choose, if they wish, to file Form I-765 if they choose to receive an employment authorization document.

USCIS further indicated in its memorandum that it will work with U.S. Customs and Border Protection to modify notations on the I-94 form for those E and L dependent spouses entering the United States so as to streamline their eligibility for immediate access to employment in the United States without the need to file for or obtain separate employment authorization documents.

We are awaiting the actions by U.S. Customs and Border Protection and when it will implement the updated I-94 changes.

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