The United States Citizenship and Immigration Services agency (USCIS) has released new guidance for spouses of skilled workers to ease the process of receiving employment authorization. This new guidance amends the policy manual and provides significant changes, including the automatic extension of work authorization for the spouses of H-1B and L-1 employees
Previously the spouses of H-1B, E, and L-1 visa holders were given non-immigrant statuses, which did not come with automatic permission to work in the United States. Instead, H-4, L, and E spouses would need to apply for an Employment Authorization Document (EAD) in order to work. Previously, receiving this permission would take approximately two or more months; however, with the considerable backlog and challenges the agency is facing, this process is now dragging out often for more than eight months.
With this new guidance, the USCIS will now consider E and L-2 spouses as automatically authorized to work in the U.S. However, until Form I-94 is changed to distinguish these spouses from children, it will not be used as proof of work authorization.
Additionally, the USCIS will grant automatic 180-day extensions for EAD’s held by E, L, and H-4 spouses. In order to qualify for an automatic extension, these spouses must possess an unexpired Form I-94 confirming their status for a valid date beyond the expiration of the EAD and file their application to renew the EAD on time.
For employers to comply with this process, they will need to accept new documentation to complete the Form I-9. The new guidance for the different classifications of spouses and situations are fairly similar for situations with automatic renewal.
In these situations, in order to complete the Form I-9 for H-4, E, and L visa holders with an expired EAD, an employee must present their facially expired EAD as well as Form I-797C, Notice of Action for Form I-765 with the same class requested as on the EAD. This form must show that the renewal application for the EAD was filed prior to the expiration date on the expired document. The employee must also present an unexpired Form I-94, Arrival-Departure Record showing a valid H-4, L-2, or E status.
Employers will need to reverify employment authorization at the earlier date for approval or denial of the I-765, the end date of the Form I-94, or the end of the automatic extensions period for the EAD.
These new procedures may prove confusing for many employers, and the best way to prevent costly mistakes is to use an electronic I-9 management tool. This will guide hiring personnel through every step of the I-9 process and ensure that the correct documents are accepted and maintained securely in compliance with federal regulations.