Employment Authorization for E, L and H Dependent Spouses

Recent litigation and important updates for spouses of E, L and H visa holders.

On November 10, 2021, the parties in Shergill, et al v Mayorkas reached an important settlement that now affords an automatic extension of employment authorization for up to 180 days in narrowly defined circumstances for H-4 and L-2 dependent spouses. In addition, L-2 dependent spouses are also now considered employment authorized incident to their status under the settlement.

Following the settlement agreement on November 12, 2021, U.S. Citizenship & Immigration Service (USCIS) issued Policy Alert addressing the automatic extension of employment authorization and employment authorization incident to status. Notably, the Policy Alert also addresses employment authorization for E-2 dependent spouses.
More specifically, the USCIS Policy Alert indicates that:

• Similar to H-4 and L-2 spouses, E-2 spouses also qualify for the automatic extension of employment authorization and the accompanying EAD for up to 180 days, if certain conditions are met.
• Similar to L-2 dependent spouses, USCIS will now consider E-2 spouses to be employment authorized incident to status.
  Important Note: USCIS has indicated in its Policy Alert that E-2 and L-2 spouses will still need to present employers with evidence of employment authorization and identity for purposes of the I-9 form, although “at this time” the only document that satisfies the I-9 document requirement is the EAD. USCIS is, therefore, taking steps to modify the notations of the Form I-94 for both E-2 and L-2 spouses for alternative evidence of employment authorization for this group. Until then, however, USCIS anticipates that E-2 and L-2 dependent spouses will likely continue requesting an EAD to meet Form I-9 requirements.

With law offices in San Diego, California, Mark C. Ople, Esq. specializes in the practice of Immigration and Nationality Law. Mr. Ople graduated from Yale University in 1989 with a Bachelor’s Degree in History. He received his Juris Doctor Degree from the University of California, Berkeley, Boalt Hall. Mr. Ople is an immigration lawyer specializing in providing corporate and immigration legal services to the San Diego community and beyond. He represents individuals from every region of the world. One of Mr. Ople’s principal practice areas is employment-based immigration law for the high-technology industry, including the biotechnology, engineering, computer design, and telecommunications sectors. Mr. Ople represents U.S. companies as well as foreign nationals who wish to work in the U.S. with nonimmigrant employment visas, including E, H, L, P, TN, and O visas, as well as those applying for permanent resident/immigrant visas (“green cards”).

He also works extensively on family-based visas, green cards, and citizenship applications. Mr. Ople’s immigration law office is committed to providing the highest quality legal services and is dedicated to providing clients personalized service. Immigration law is a federal practice; consequently, our office represents clients throughout the United States and at U.S. Embassies around the world.