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Employment Authorization for L-2, H-4, and E Visa Spouses – Frequently Asked Questions in light of New USCIS Policy

Labor & Employment Timothy D'Arduini, Andrew Kuntz

Please see the below guidance on U.S. Citizenship and Immigration Service’s (“USCIS”) recent settlement and policy changes regarding work authorization for L-2, H-4, and E visa spouses. The changes are memorialized here.

USCIS is still working to implement the changes, and we will advise when further clarity is provided by the government. As every employer maintains a different policy for supporting or not supporting work authorization for spouses, we advise that you consult with your employer or reach out to Quarles & Brady on a personal basis to determine how these changes affect you.


L-2 Spouses

1. I am a spouse and have a pending L-2 EAD extension application. Is my L-2 Employment Authorization Document (“EAD”) automatically extended in light of the USCIS settlement?

No. In order to qualify for an automatic extension of your L-2 EAD, you must have:

  • Filed an L-2 EAD extension prior to the expiration of your L-2 EAD; and
  • Remain in valid L-2 status with an unexpired I-94.

2. If I am eligible for an automatic extension of my L-2 EAD, how long will it be valid for?

L-2 spouses must meet the two criteria above to qualify for an automatic extension. If an L-2 spouse qualifies, their work authorization will only be valid until the earliest of the following dates:

  • 180 days from the expiration of their L-2 EAD;
  • Until their I-94 expires; or
  • Until they receive a decision on their pending L-2 EAD application.

For this reason, the automatic extension of an L-2 EAD will only impact a limited number of L-2 spouses.

3. I am currently a spouse who is in L-2 status but do not have a L-2 EAD; am I authorized to work incident to my L-2 status?

No. USCIS’s new policy authorizing L-2 spouses to work incident to status will not apply until USCIS implements changes to the I-94 to reflect such a policy change. Until then, L-2 spouses must have an EAD to be eligible to work.

4. I am a spouse who currently holds L-2 status. When USCIS implements changes to the I-94 system, will my L-2 status allow me to work?

Yes. USCIS’s policy will authorize L-2 spouses to work incident to their status. L-2 spouses will be able to present their I-94 record as a valid List C (Employment Authorization) document when completing
Form I-9.

Important Note: We do not have an indication from USCIS regarding when the change to the I-94 system will be made. We will provide further guidance when USCIS provides an update.

5. My child currently holds L-2 status. When USCIS implements changes to the I-94 system, will my child’s L-2 status allow them to work?

No. USCIS’s policy will not extend work authorization to L-2 children.

H-4 Spouses

1. I have a currently pending H-4 EAD extension application; is my H-4 EAD automatically extended in light of the USCIS settlement?

No. In order to qualify for an automatic extension of your H-4 EAD, you must have:

  • Filed an H-4 EAD extension prior to the expiration of your H-4 EAD; and
  • Remain in valid H-4 status with an unexpired I-94.

2. If I am eligible for an automatic extension of my H-4 EAD, how long will it be valid for?

H-4 spouses must meet the two criteria above to qualify for an automatic extension. If an H-4 spouse qualifies, their work authorization will only be valid until the earliest of the following dates:

  • 180 days from the expiration of their H-4 EAD;
  • Until their I-94 expires; or
  • Until they receive a decision on their pending H-4 EAD application.

For this reason, the automatic extension of an H-4 EAD will only impact a limited number of H-4 spouses.

3. I am currently in H-4 status but do not have a H-4 EAD; am I authorized to work incident to my H-4 status?

No. USCIS’s new policy authorizing spouses to work incident to status does not apply to H-4 spouses or children holding H-4 status. H-4 spouses who are eligible for an H-4 EAD must file an application with USCIS to obtain work authorization.

E Visa Spouses

1. I am an E visa spouse and have a pending EAD extension application. Is my Employment Authorization Document (“EAD”) automatically extended in light of the USCIS settlement?

No. In order to qualify for an automatic extension of your EAD, you must have:

  • Filed an EAD extension prior to the expiration of your E status; and
  • Remain in valid E status with an unexpired I-94.

2. If I am eligible for an automatic extension of my EAD, how long will it be valid for?

E visa spouses must meet the two criteria above to qualify for an automatic extension. If an E visa spouse qualifies, their work authorization will only be valid until the earliest of the following dates:

  • 180 days from the expiration of their EAD;
  • Until their I-94 expires; or
  • Until they receive a decision on their pending EAD application.

For this reason, the automatic extension of an EAD will only impact a limited number of E visa spouses.

4. I am currently a spouse who is in E visa status but do not have an EAD; am I authorized to work incident to my E status?

No. USCIS’s new policy authorizing E visa spouses to work incident to status will not apply until USCIS implements changes to the I-94 to reflect such a policy change. Until then, E visa spouses must have an EAD to be eligible to work.

5. I am a spouse who currently holds E visa spouse status. When USCIS implements changes to the I-94 system, will my E visa spouse status allow me to work?

Yes. USCIS’s policy will authorize E visa spouses to work incident to their status. E visa spouses will be able to present their I-94 record as a valid List C (Employment Authorization) document when completing Form I-9.

Important Note: We do not have an indication from USCIS regarding when the change to the I-94 system will be made. We will provide further guidance when USCIS provides an update.

6. My child currently holds E visa dependent status. When USCIS implements changes to the I-94 system, will my child’s E visa dependent status allow them to work?

No. USCIS’s policy will not extend work authorization to children with E visa dependent status.

For more information on the impacts of these new USCIS policies, please contact your local Quarles & Brady attorney or:

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