Employment Authorization for H-4, E, and L Nonimmigrant Dependent Spouses, Automatic extension increases to 540 days

The USCIS, on 4^th May 2022, released a Temporary Final Rule (TFR) that is set to be published in the Federal Registrar on 5^th May 2022, effective immediately when published. This TFR increases the automatic extension period for employment authorization and Employment Authorization Documents (EADs), available to specific categories of EAD renewal applicants, to 540 days, which was previously 180 days.

• Provides that certain H-4, E, or L dependent spouses qualify for an automatic extension of their existing employment authorization and accompanying EAD if they correctly filed an application to renew their H-4, E, or L-based EAD before it expires and they have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable.

• Provides that the automatic extension of the EAD will continue until the earlier: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 540 days (increased effective May 4^th from 180 days) from the date of expiration of the previous EAD.

• Provides that the following combination of documents evidence the automatic extension of the previous EAD, and is acceptable to present to employers for Form I-9 purposes:a. Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L)b.b. Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),”c. and the facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26)
• Provides that E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD.
• Pending Litigation is challenging USCIS’s delay in adjudicating EADs (I-765 work permit applications). A federal judge is being asked to order USCIS to process your EAD applications immediately, and to change their policies and procedures to avoid long delays in the future.
• Effective May 4, 2022, DHS is temporarily increasing the extension period and providing up to 360 days of the additional automatic extension time, for a total of up to 540 days, to eligible renewal applicants. The automatic extension time is counted from the expiration date of the employment authorization and/or EAD. This temporary increase is available to eligible renewal applicants:

  a. Before May 4, 2022, and your 180-day automatic extension has since expired;

  b. Before May 4, 2022, and your 180-day automatic extension has not yet expired; or

  c. Between May 4, 2022, and Oct. 26, 2023, inclusive of these dates.

• If you file your Form I-765 renewal application after Oct. 26, 2023, the normal 180-day automatic extension period will apply.

We’ve received quite a few questions on the latest updates. Here are some of the questions Prashanthi Reddy has answered. (Have more questions? Ask Questions, and we’ll try to answer them on our website)

Q1:How do the latest updates on Employment Authorization for H-4, E, and L impact Non-immigrant Dependent Spouses?

Answer: This USCIS announcement allows non-immigrant dependent spouses to continue working even after the expiry of their EAD card. It is a limited benefit because to avail of this benefit, The applicant would have to have an unexpired H-4 I 94. Often the I 94 and the EAD expire at the same time; therefore, the pool of people that will qualify for this benefit is limited; keeping in mind that the H-4 I 94 extension is also taking a long time for USCIS to process, it is hard to overcome this obstacle.

Q2:What are the eligibility criteria for Automatic Extension under the latest updates?

Answer: To qualify for this benefit, the applicant would have to file an EAD extension before its expiry of the EAD and should have an H-4 that has not expired. They will then get the automatic extension for the duration of the I-94 or 540 days whichever is less.

Q3: How do the latest updates impact my application currently under process?

Answer: Any application that is presently pending with USCIS will get an automatic extension of 540 days from the expiry of the EAD or for the duration of the I-94 whichever is less.