Last Updated on November 29, 2022 by Anda Malescu
This article is a newly updated complete guide to EAD renewal and automatic extension for H4, L2, E1, E3 and E2 spouses under the current law and incorporates the most recent U.S. Citizenship and Immigration Services (USCIS) policy changes on November 12, 2021.
The new USCIS guidelines for EAD are the result of a settlement agreement reached in the federal court case Shergill v. Mayorkas. Although the settlement agreement covered only L2 and H4 spouses who have been long waiting for the EAD to be issued during the COVID-19 pandemic, the USCIS ultimately issued formal guidance on November 12, 2021, covering EAD renewals not only for H4 and L2 but also for E1, E3 and E2 spouses. Our complete guide to EAD renewal answers all questions regarding EAD renewal for H4, L2, E1, E3 and E2 spouses.
Spouses on H4, L2, E1, E3 or E2 visa who accompany their husband or wife to the United States are eligible to seek employment during their stay.
Up until recently L2, E1, E3 or E2 spouses who wanted to work in the US were required to apply and get a work authorization document, also known as employment authorization, work permit or EAD from the U.S. Citizenship and Immigration Services (USCIS) before the start of their employment. In fact, the L2, E1, E3 or E2 spouses could not work until USCIS approved their EAD.
However, on November 12, 2021, USCIS has changed its policy and announced that L2, E1, E3 or E2 spouses will not need to apply for an EAD and instead their work authorization will automatically accompany their status and will be noted on their form I-94. Please note that the policy has not changed for H4 spouses.
Our complete guide to the EAD renewal and automatic extension for H4, L2, E1, E3 and E2 spouses incorporates all recent policy changes that you need to know regarding EAD renewals.
1. Does an H4, L2, E1 or E2 spouse need EAD?
Currently, L2 and E1, E3 or E2 spouses do not need an EAD in order to be able to work in United States. Moving forward the L2 and E spouses (including E1, E3 or E2 spouse) will not be required to apply and receive an EAD before beginning employment in the United States, but USCIS will continue to issue EADs for such dependent spouses that choose to apply for an EAD. However, please note that until USCIS can implement the changes, the spouses still need to rely on the EAD as evidence of employment authorization as described below.
In other words, getting an EAD is optional for L2 and E1, E3 or E2 spouses.
The EAD can be presented to employers to prove both identity and employment authorization in the United States and are acceptable for Form I-9 as List A documents.
If the L2, E1, E3 or E2 spouse chooses not to apply for EAD, then he or she can present to employers a revised Form I-94 which contains a notation indicating the E or L dependent spouse status and such I-94 is an acceptable proof of employment authorization under List C of Form I-9. DHS is taking steps to modify Forms I-94 to show L or E dependent spouse status on the face of the I-94 as an L-2S or E-2S notation.
However, please note that until USCIS can implement changes to Form I-94 to distinguish E and L spouses from E and L children, E and L spouses would still need to rely upon an EAD as evidence of employment authorization to present to employers for completion of Form I-9 and should apply for EAD. Until the notation on Form I-94 issued to E and L dependent nonimmigrants is revised, Form I-94 solely indicating E or L nonimmigrant status is insufficient evidence of employment authorization under List C of Form I-9.
H4 spouses need EAD to work in the United States. Unlike with L or E spouses, H4 spouses are required to apply for an EAD with USCIS and receive the EAD before the job start date when applying for the first time for an EAD. If applying for EAD renewal, H4 spouses may be able to qualify for automatic extension of existing employment authorization and EAD as discussed below.
2. Can you work while the EAD renewal is pending?
Yes, H4, L2, E1, E3 or E2 spouses can work while EAD renewal is pending if they meet the following conditions:
- They filed the application to renew the EAD with USCIS before the EAD expires based on holding the same H4, L2, E2, E1 or E3 status, and
- They have an unexpired Form I-94 showing their status as an H4, L2 or E nonimmigrant.
If you meet the conditions above and you timely filed for an EAD renewal and you have an unexpired I-94 form showing your H4, L or E spouse status, then you qualify for an automatic extension of your current work authorization and EAD, and can work while the EAD is pending under the automatic EAD extension until one of the following occurs first:
- The end date on Form I-94 showing valid H4, L2, E2, E1 or E3 status; or
- The date the EAD renewal application was approved or denied by USCIS; or
- 180-days from the date of expiration of the previous EAD.
In other words, H4, L2, E1, E3 and E2 spouses EAD categories are eligible for 540-day extension. Spouses on H4, L2, E2, E1 or E3 visa status can work maximum 540-days from the date the EAD card expired while the EAD renewal is pending, provided that the other two conditions are not met (the I-94 is not expired and USCIS has not approved or denied the EAD renewal application). Keep in mind that you cannot file for an EAD renewal more than 180 days before your original EAD expires.
Acceptable proof of automatic extension of your EAD renewal that you present to employers for Form I9 include the following:
- Form I-94 showing the unexpired H4, L or E status;
- Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as (a)(17), (a)(18), or (c)(26); or
- The expired EAD issued under the same category (that is, indicating Category A17, A18, or C26)
3. Does the EAD need to be renewed every year?
An H4 spouse does not need to renew EAD every year and for L2 or E1, E3 or E2 spouses no EAD renewal is required as such spouses are considered employment authorized incident to status as noted on their I-94 form.
Our experienced immigration lawyers in Miami, Florida USA can assist you with navigating the complete guide to EAD renewal and automatic extension for H4, L2, E1, E3 and E2 spouses and EAD applications.
Malescu Law P.A. – Immigration Lawyers
