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. E3Ds] 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:

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