Immigration Solutions

Employment Authorization for L-2 Spouses based on Status

As it turns out, there was no need for USCIS to require L-2 Spouses to apply for EAD.

They were supposed to get employment authorization based on their L2 status.

This is called work authorization “incident to status”.

Your visa status in the US is reflected on the I-94 that is issued to you.

You are issued an I-94 at the US Port of entry (PoE) during the PoE Process issued by a Customs and Border Protection (CBP) officer, or by USCIS when you apply for Extension or Change of Status.

As a result of the settlement, USCIS will issue policy guidance that states that L-2 spouses can work based on their valid L2 visa status.

USCIS says they will work with CBP to change the Form I-94 Arrival/ Departure record within 120 days to reflect that L-2 spouse’s I-94 can be used for I-9 verification as a List C Document.

Automatic Extension of L2 EADs for up to 180 days

USCIS will also interpret regulation 8 CFR § 274a.13(d) to give an automatic extension of L2 EAD ( filed under EAD Category Code (a)(18) ) for up to 180 days based on the below conditions.

  • L2 spouses should have filed L2 EAD renewals using I-765 form on time before L2 status expiry.
  • The L2 EAD automatic extension will end as soon as one of the below three conditions are met.
    • If the L2 status of the L2 EAD applicant ends ( meaning the I-94 expires)
    • L2 EAD application decision is given by USCIS (approval or denial )
    • 180 days from the day the L2 EAD Card expires (expiration date is on the L2 EAD Card)

USCIS will also issue guidance to the employers and agencies on how to interpret the above for I-9 compliance.

Until Form I-94 is changed to reflect that L-2 Spouses can work based on I-94, employers cannot just use I-94 for I-9 compliance.

Until then, below are the documents that employers will need from L2 EAD applicants for I-9 compliance and allow them to work after EAD expiration.

  • Expired L2 EAD Card that has category listed as A18
  • L2 EAD Receipt notice ( I-797C notice of action for form I-765) that has class requested stated as “(a)(18)” that has filing date before the expiration of the EAD card
  • Form I-94 Arrival-Departure Record that is not expired and shows valid L2 Status.

The employers will need to re-verify the work authorization of L2 EAD holder before one of the below occurs

  • I-94 expiration
  • The decision from USCIS on L2 EAD application
  • Before 180th day of the EAD auto extension period.

Leave a Comment