Completing the Form I-9 for Automatic Extensions of Nonimmigrant Dependent Spouse’s EADs

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What Employers Need to Know About an H-1B Visa

The USCIS recently issued a new policy that applies to dependent spouses with an L-2 and E-1/E-2/E-3 status. This policy was issued on November 12, 2021 and will automatically extend the employment authorization of these spouses as well as certain H-4 spouses. The automatic extension is for 180 days and was enacted due to the long time it takes to process EAD extensions for these work-eligible spouses. These people may be eligible to have their Employment Authorization Document (EAD) automatically extended. The extension would start on the day that the current EAD expires and would typically continue for up to 180 days. Although, the extension will end if the application for renewal is denied by the USCIS. There are certain requirements for an EAD extension, such as:

 

  • Employees need to have filed for renewal of their employment authorization and/or Application for Employment Authorization (Form I-765) in a timely manner before the expiration of their current EAD. This does not apply to certain employees who have Temporary Protected Status (TPS), in which case the Form I-765 renewal application will remain pending.
  • The eligibility category located on the front of the Employment Authorization Document needs to be in the same eligibility category as the one that appears on the Form I-797C Notice of Action for the employee except under limited circumstances.
  • There are only certain categories are that are eligible to receive a 180-day extension. These are: A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, and A12 or C19. Certain employees in categories A-17, A-18, and C-26 who file a Form I-765 renewal application are eligible for an automatic extension as well. When employers compare the category code appearing on the receipt code with the category code on the EAD, they should ignore the letter P.

If an employee shows a Form I-797C receipt notice which shows that an EAD renewal application in the same employment eligibility category as the EAD was filed in a timely manner, then the EAD, which seems to be expired, is automatically extended.

For categories A17, A18, and C26, documentation in addition to a Form I-797C showing a timely renewal application is required to demonstrate that the EAD has been extended. This means presenting a Form I-94 that indicates an eligible unexpired non-immigrant status.

If an employee in one of these categories is new, for section 2, employers need to:

  • Enter EAD in the Document Title field.
  • Enter the receipt number from Form I-797C in the Document Number field.
  • Enter the date 180 days from the earlier of the end date of the Form I-94 or the “Card Expires” date on the EAD. The expiration date may be sooner should the USCIS deny the employee’s renewal application before the end of the 180 day period.
  • Enter the Form I-94 document information in the second Document field.
  • Enter EAD EXT in the Additional Information Field.

If a current employee’s EAD has been automatically extended, employers need to enter Form I-797C’s receipt number, the document information from Form I-94, and update the expiration date on Form I-9. This information can be given in the Additional Information field. In order to update the expiration date, employers need to enter “EAD EXT” along with the 180-day auto-extended date from the earlier of the end date of the Form I-94 or the “Card Expires” date on the EAD. Employers may write EAD EXT mm/dd/yyyy. When the automatic extension period ends, the employer must reverify the employee’s employment verification.

Reverification

You must reverify your employees at the end of their automatic extension. This needs to be done at the latest on the date that the work authorization expires. They can be reverified before this date if they present a document that shows their authorization for continued employment.