In response to a recent lawsuit, the U.S. Citizenship and Immigration Services (USCIS) will be implementing new policies to improve the issuance of work authorizations for non-immigrant H1-B and L-1 visa holders. From here on out, H-4 spouses that have pending applications for their employment authorization documents (EAD) will receive automatic 180-day extensions for their EAD cards, and for L-2 spouses, EADs will not be required at all. Instead, they will possess authorization as a part of their status.

In order to qualify for an automatic 180-day extension, an H-4 spouse must file before their current EAD expires. Additionally, the H-4 status of the applicant must extend beyond the expiration date of the EAD. This will be shown on Form I-94 Arrival/Departure Record.

This 180-day automatic extension will expire on the earliest of the following dates:

• The end of the individual H-4 status contained on the Form I-94;
• The approval or denial of the individual’s Form I-765 renewal application;
• 180 days from the expiration of the applicant’s current EAD

So, how does this apply to the Form I-9, Employment Eligibility Verification? The USCIS will soon issue specific guidance for how this will be done. Essentially, what this comes down to will be that the employee will show their expired EAD, a valid I-94 demonstrating H-4 status, and a receipt notice for I-797 showing a renewal application that was filed on time. The USCIS will begin distributing receipt notices within the next 120 days concerning the automatic extension of the EAD.

For L-2 dependents, the USCIS will begin issuing guidance concerning these spouses’ employment authorization which will now come incidentally to their L-2 status. Working in coordination with U.S. Customs and Border Protection, the USCIS will alter Form I-94 to show that its holder is, in fact, an L-2 spouse in order for it to be used in conjunction with proof of identity to prove work authorization for the I-9 process.

These changes will, of course, only serve to assist applicants that possess an I-94 document showing H-4 or L-2 status that extends past the expiration of their current EAD. Given the extremely long processing times for renewing H-4 or L-2 status, as well as for those attempting to receive initial EADs, this will be of limited value for many.

However, employers must take note of the change in valid documentation for Form I-9. With Form I-94 receiving changes that permit it to be used in conjunction with proof of identity, hiring personnel must be aware that they must accept this as a List C document. Of course, for those using an electronic I-9 management tool, the software will help guide them through the process and ensure that the process is completed correctly.