Tag Archives: I-765

USCIS Issues Policy Guidance on Automatic EAD Extensions for Dependent Spouse (H-4, E, L)

USCIS Issues Policy Guidance on Automatic EAD Extensions for Dependent Spouse (H-4, E, L)

USCIS reached a settlement agreement as a result of recent litigation (Shergill, et al. v. Mayorkas) targeting the delayed processing times for EAD applications and extensions. Previously USCIS prohibited H-4 spouses from benefiting from automatic employment authorization extensions while their EAD applications were pending. Following the settlement agreement, USCIS released new guidance allowing H-4 spouses automatic EAD extensions and clarifying that L and E spouses will now enjoy automatic work authorization incident to status. The L and E dependent spouses will no longer have to apply for employment authorization unless they prefer to have the document for identity verification and other related purposes.

While the new guidance is effective immediately, the settlement agreement notes a maximum 120-day timeline for implementing the changes. USCIS will continue to issue E and L dependent spouses EADs upon filing Form I-765. Individuals may want to continue filing I-765 since EADs are acceptable for I-9 purposes as List A documents, demonstrating employment authorization and identity.

Under the new guidance, what is acceptable evidence of work authorization for I-9 purposes?

  • A document combination to include:
    • an unexpired Form I-94 indicating nonimmigrant status (H-4, E, or L)
    • Form I-797C (receipt notice) showing a timely-filed EAD renewal application 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).

Note: DHS will modify Forms I-94 for L and E dependents to distinguish spouses from children. Only once those changes are made will the revised Form I-94 be acceptable as a List C document and EAD extensions will no longer be required for L and E dependent spouses. The evidence of employment authorization must have a notation indicating the individual is an E or L dependent spouse. Prior to that change taking place, L and E dependents should follow the same guidelines outlined above for EAD applicants.

My E or L EAD extension is still pending. Can I start working again?

    • E and L dependent spouses are employment authorized incident to status and therefore will no longer have to file Form I-765 once the I-94 has been updated, but may continue to file if they choose to receive an EAD.
    • However, the updated guidance states: “Therefore, until USCIS is able to issue alternative evidence of employment authorization for this group, they will likely continue to request an EAD through the Form I-765 process to meet Form I-9 requirements.”
    • To utilize the I-94 without an EAD as evidence of work authorization, the guidance from USCIS states that the I-94 must bear a notation indicating the individual is a qualifying E, or L spouse. CBP and USCIS could take up to 120 days to modify the I-94s.
    • Until that time, E and L spouses should follow the same guidelines as H spouses with EAD extensions pending.

My H-4 and H-4 EAD extension are still pending. Can I begin working again?

    • If the spouse filed an I-539 application to extend H-4 status concurrently with an EAD application, the H-4 spouse would only qualify for the auto-extension of the EAD if they have time remaining on their existing I-94.

CHALLA TIP: If the primary H-1B has already been approved and extended (perhaps after a premium upgrade), the H-4 dependent spouse can depart the country and then re-enter on the H-4 visa, using the H-1B approval notice to obtain an I-94 with longer validity. The individual would then be eligible for an automatic extension of up to 180 days or the earlier of the scenarios described below. Check out our Travel FAQs & New Guidance on COVID-19 Vaccination Requirements before planning your trip.

When will the automatic extensions be valid? 

  • Automatic extensions for H-4, E, or L dependent spouses will be applicable if they properly file an application to renew their EAD before the expiration date (if applicable) and they have an unexpired I-94 showing their valid status.
  • The automatic extension will continue until the earlier of:
    • The end date on the 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

Wondering if you qualify for an automatic extension? Email us at info@challalaw.com with your questions.

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USCIS to Allow F-1 Students to File I-765 Online to Request OPT

USCIS announced that it would now accept the online version of Form I-765 from certain F-1 students applying for pre or post-completion OPT or STEM OPT extensions. This may provide some relief to students who have been subject to delays at USCIS lockboxes. Previously, USCIS announced flexibilities for F-1 students who had been affected by lockbox delays.

USCIS Announcement

WASHINGTON—U.S. Citizenship and Immigration Services today announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing under one of these categories:

  • (c)(3)(A) – Pre-Completion OPT;
  • (c)(3)(B) – Post-Completion OPT; and
  • (c)(3)(C) – 24-Month Extension of OPT for science, technology, engineering and mathematics (STEM) students.

OPT is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). Eligible F-1 students who receive STEM degrees may apply for a 24-month extension of their post-completion OPT.

“USCIS remains committed to maximizing our online filing capabilities,” said Senior Official Performing the Duties of USCIS Director Tracy Renaud. “The I-765 online filing option allows eligible students to file forms online in a more user-friendly fashion and increases efficiencies for adjudicators.”

The option to file Form I-765 online is only available to F-1 students filing Form I-765 for OPT. If an applicant submits Form I-765 online to request employment authorization on or after April 15, but is eligible for a different employment authorization category, USCIS will deny the application and retain the fee. As USCIS continues to transition to paperless operations, the agency will work to expand online filing for Form I-765 to additional categories.

Online filing allows applicants to submit forms electronically, check the status of their case anytime from anywhere, and receive notices from USCIS online instead of waiting for them in the mail. USCIS is using innovation and technology to meet the needs of applicants, petitioners, and employees. Regardless of the paper or electronic format of an application or petition, USCIS is committed to ensuring a secure and efficient process for all.

Individuals can file 11 USCIS forms online, which can all be found on the Forms Available to File Online page. To file these forms online, individuals must first create a USCIS online account at https://myaccount.uscis.gov/. This free account allows them to:

  • Submit their forms;
  • Pay their fees;
  • Track the status of their case;
  • Communicate with USCIS through a secure inbox; and
  • Respond to Requests for Evidence.

USCIS continues to accept the latest paper version of these forms by mail.

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Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. You can also join our Telegram community.

Contact us atinfo@challalaw.com or 804-360-8482 to get your case started today.