E-3D, H-4, and L-2 changes now mean automatic EAD extensions and immediate work status without an EAD

In an incredibly exciting release from USCIS on November 12 titled “Employment Authorization for Certain H-4, E, and L Non-immigrant Dependent Spouses” it appears that E3D (dependents of those on E3 visas) are now going to be allowed to work much more easily in the US.

One particularly difficult element of moving to the US from Australia on an E3 visa with a family is the fact that spouses traditionally have not been allowed to start working until they receive an EAD (work authorization). In addition to this, once the E3D is renewed, there's another delay in getting a renewed EAD which means that work has to be stopped and for many, this makes work difficult or impossible to find.

In the release from USCIS on November 12, however, it appears that US Citizenship and Immigration Services (USCIS) has changed this policy to make it much easier for those on E3Ds to start work.

You can read the full policy alert here and updates have been made in the “Family of E-3 Nonimmigrant Workers” section of the E-3 information page on the USCIS website.

What has changed for E3Ds already in the US who have expiring EADs?

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. USCIS is also rescinding the 2002 Legacy Immigration and Naturalization Service memorandum entitled, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition” (2002 INS memorandum).

In short, the update states that:

USCIS is updating its interpretation and implementation of [existing policies] to provide that certain H-4, E, or L dependent spouses [e.g. E3S] will qualify for the automatic extension provided under this regulatory provision if certain conditions are met.

In order to show that you have work status, you will no longer have to wait for a renewed EAD. Instead you must show that you have a valid I-94, and you have filed for your extended EAD in a timely manner (and have received an I-797C notice of action receipt), and can show your expired existing card. This combination of documents “may be acceptable to evidence unexpired employment authorization for Employment Eligibility Verification (Form I-9) purposes”.

The new and updated summary from E-3 Specialty Occupation Workers from Australia shows that certain E-3 dependent spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet certain conditions:

• They timely filed a renewal Form I-765, Application for Employment Authorization, based on the same E-3 nonimmigrant status;
• They have an unexpired Form I-94 showing their status as an E-2 nonimmigrant.

The automatic EAD extension will continue until whichever comes first:

• The end date on the dependent spouse’s Form I-94 showing valid E-3 nonimmigrant status, as applicable;
• The date we approve or deny their application to renew the EAD; or
• 180 days from the “Card Expires” date on the front of the EAD.

Eligible E-3 dependent spouses may present the following evidence of the automatic EAD extension to employers for purposes of Form I-9, Employment Eligibility Verification:

• Form I-94 indicating the unexpired E-1 nonimmigrant status;
• Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17)”; and

The expired EAD issued under the same category, Category A17.

What has changed for E3Ds who have not yet received or applied for an EAD?

This is the particularly exciting update in this policy change alert.

In addition, USCIS is also clarifying that it will consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status

This is saying that those who successfully receive an E3D will automatically be given work privileges (without the need for an EAD at all).

No more waiting for an EAD to start work! This is very exciting for hundreds and thousands of dependants all across the United States.

Traditionally, E and L spouses have been required to request employment authorization by filing an Application for Employment Authorization (Form I- 765) and receive an EAD before beginning employment but this updated policy changes that.

DHS will immediately take steps to modify Forms I-94 evidencing nonimmigrant status issued to E and L dependents so that E and L dependent spouses can be distinguished from E and L dependent children on the face of the document. Once these changes are made, the revised Form I-94 containing a notation indicating that the bearer is an E or L dependent spouse will be acceptable as evidence of employment authorization under List C of Form I-9

This all means to say that they will make sure your E3D documents show that you are allowed to work (as children are not allowed – so they need to have different information on their papers).

The new and updated summary from E-3 Specialty Occupation Workers from Australia shows that certain E-3 dependent spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet certain conditions.

How to have the new E3S and E3Y status applied when you arrive to the United States

With these updates now in place, it's important that you take full advantage of them.

When you arrive at the airport as an E3D, be sure to request an E3S if you are a spouse, or an E3Y for your dependents. We're hearing of cases where officers were unaware of the new E3 types and they therefore didn't use them.

If you are admitted to the US with just E3D (and not E3S) your automatic work rights will not apply.

Updated (3/18/2022): Another step forward with E3D and L2 spousal visas and the ability to get automatic work authorization! If you entered before Jan 30 and the issuance of the E3S status and have adjusted status with an I-539, you will receive a letter from USCIS which you can use as work authorization! You're no longer required to leave the country and return to get the new status.

USCIS just issued updated guidance which has explained that

if you are an E or L spouse age 21 or over who has an unexpired Form I-94 that USCIS issued before Jan. 30, 2022, we will mail you a notice beginning on or about April 1, 2022. This notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization”
If you don't get this letter:

And if you haven't received it?

If you are an E or L spouse and under 21, or if you have not received your notice by April 30, email [email protected] to request a notice.”

This is however just for “individuals identified as qualifying spouses based on a Form I-539 approved by USCIS” as opposed to everyone who entered before January 30.

And just to recap:

As of Jan. 30, 2022, USCIS and CBP began issuing Forms I-94 with the following new COA codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9.

Getting social security with a new E3S or L2S visa

After a frustrating few weeks with the Social Security Administration (SSA) for many entering on an E3S visa, there has been progress! The SSA will now recognize that E and L spouses are work authorized incident to status by May 6, 2022.

on June 3, 2022 the Social Security Administration update their policy for E3S visas and automatic work authorization (and getting Social Security Numbers – SSNs)!

Instead of rumors, and private memos, we now have official policy that instructs SSA officers how to deal with E3 Dependents (E3S, formerly E3D) and the fact that they now get automatic work authorization incident to status.

E3S has been moved to the category “Aliens employment-authorized without specific DHS authorization” alongside E3!

As per RM 10211.420 Employment Authorization for Non-immigrants (https://secure.ssa.gov/poms.Nsf/lnx/0110211420):

“Effective November 2021, USCIS granted E-1, E-2, E-3, L-1, and L-2 spouses work authorization incident to status. I-94s issued prior to November 2021 may reflect the COAs of E-1, E-2, E-3, L-1, and L-2 and those spouses no longer must present a marriage document to establish work authorization as spouses of E-1, E-2 E-3, L-1, and L-2 principles. If the supplied I-94 was issued prior to November 2021 then USCIS will not issue a new I-94.”

If you are still having issues with the social security office issuing your SSN (or instructing you that you need an EAD) print out the above page and take that with you. This is their official policy guide and there relevant section is:

G. Policy for employment authorization by Class of Admission (COA) – 1. Aliens employment-authorized without specific DHS authorization.

Inside this section you will see that E3S is now listed next to E-3.

What has changed for those dependents of L1 visas (L2) and H-4 visa holders?

From my initial reading, these changes apply to these visa statuses as well.

Highlights from this policy update for E3Ds, L2s, and H-4s

• Provides that certain H-4, E, or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly 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 of: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 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 are acceptable to present to employers for Form I-9 purposes: Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L), Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” 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.4