Immigration
Employment Authorization for spouses of H-1B and L-1 Visa holders
By Dilip Patel, Yova Borovska & Kaitlyn Dhar
This month, we will discuss employment authorization for spouses of H-1B and L-1 temporary workers. First, we will provide some basic background and then provide some updates and helpful pointers.
The H-4 spouse of an H-1B worker is generally not entitled to employment authorization. However, if green card processing for the H-1B worker has reached the stage where an I-140 Petition has been approved for the H-1B worker, their H-4 spouse is allowed to apply for employment authorization. The Employment Authorization Document is commonly referred to as the EAD and the approval category is shown as C26 on the card.
The spouse of an L-1 worker is issued the L-2 status. Historically, L-2 spouses could work in the U.S. but only if they applied for an EAD and U.S. Citizenship and Immigration Services (USCIS) approved and issued the EAD. In 2021, USCIS clarified that L spouses are considered employment authorized based on their valid L-2 nonimmigrant status. Since 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Forms I-94 with L-2S code for L spouses (to distinguish from children of L-1’s who were also issued L-2 classification). An unexpired Form I-94 reflecting L-2S is acceptable as evidence of employment authorization for spouses. However, while L-2 spouses are no longer required to apply for their EADs, if they elect to do so in order to have U.S. issued photo identification, they are eligible to obtain one by filing an application on Form I-765.
The big issue in 2021 and 2022 was that USCIS took a long time to process the EAD causing hardship to many H-4’s and L-2 spouses (or their employers when the applications were for renewals). Previously, when extension and or EAD applications were included with applications for the L-1 or H-B worker, all would be processed at the same time. However, after 2021, the spouse applications were separated and processed separately, causing long delays.
Lawsuits were filed and in January 2023 a settlement was reached in a case called Edakunni, et al. v. Mayorkas (referred to as the Edakunni Settlement). Under the settlement, USCIS agreed to adjudicate the Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization, for H-4 and L-2 derivatives along with the underlying Form I-129, Petition for a Nonimmigrant Worker, when those forms were properly filed together, regardless of whether they are filed under standard or premium processing.
The following are important considerations to be aware of following the Edakunni settlement:
The term “bundle” refers to USCIS processing multiple forms together as a package. USCIS will only bundle Form I-539 and Form I-765 (where applicable) for H-4 and L-2 derivatives, when they are packaged together with the underlying Form I-129 and filed at the same time and in the same location. Therefore, all bundled forms, along with supporting documentation and fees should be placed in the same envelope or package. Each filing fee should be made out separately.
Bundling can occur regardless of whether the underlying Form I-129 is filed under standard or premium processing. When bundling is possible, this will greatly improve I-539 and I-765 processing times for H-4 and L-2 derivatives.
The option to bundle should encourage applicants to keep principal and derivative expiration dates the same when possible. For example, consider the following scenario:
You and your H-4 derivatives have status which expires in July 2025. You plan to change H-1B employment. Your proposed new employer is working on an H-1B change of employer filing and will include an extension for you to June 2027. An extension is not yet required for the H-4, but it is recommended to do so to keep the expiration date the same for everyone. However, with bundling of the I-539 and I-765 only being available when those forms are filed together with the underlying I-129, it is essential to keep expiration dates consistent between the principal and derivative.
Where your spouse H-4 expires first, review whether there are any changes to the conditions of your employment that might justify an amendment, allowing bundling to occur. The change need not be material. The need for this review is especially relevant when an H-4 derivative will need to apply for or renew H-4 work authorization. Given that the employer must pay for and sign the Form I-129, the employer must be willing to proceed with such a filing. Consider the following scenario:
Your H-4 spouse status and EAD expires in July 2024 but your H-1B status does not expire until July 2025. The H-4 derivative is in danger of losing their job if the H-4 work authorization is not approved around July 2024. If your employer is willing to file an H-1B amendment now, the I-129 can be filed with premium processing, and the I-539 and I-765 can be bundled with the I-129 and approved by July 2024.
You should be aware that USCIS processes and timeline continually change. Seek the advice of an experienced immigration attorney to ensure that you and your dependents always maintain status.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]