L-2 and E-2 EADs are dead! (OK - not super new news; but still something worth celebrating!)
The traditional requirement of obtaining an EAD work permit for spouses in L-2 and E-2 status has been replaced, so now L-2 and E-2 spouses can work "incident" to status. No EADs required.
Truly one of the great legacies of the Trump Administration with respect to Employment-Based (EB) immigration is that immigration lawyers started litigating against the government and having impressive success.
The EB immigration litigation trend has continued unabated into the Biden Administration and has produced considerable positive policy developments.
Perhaps the highest profile litigation success in EB immigration litigation is the elimination of the L-2 EAD work permit and the E-2 EAD work permit for spouses of L-1s and E-2 principals.
Traditionally, prior to the litigation, if a dependent spouse on L-2 or E-2 wanted to work, she (or he) would have to file for an EAD using Form I-765, pay a fee, and often wait a long time to get the EAD approved. The initial EAD was frustrating enough but the extensions became completely unworkable. Lots of hassles and complications.
Many L-2 and E-2 spouses had to stop working in the U.S. for significant gaps of time because of dysfunctional USCIS processing of EAD work permit applications (Forms I-765).
However, as a result of litigation, USCIS now recognizes that L-2 and E-2 derivative (dependent) spouses can work in the United States “incident” to status, and no EAD work permit is required.
This policy of eliminating L-2 and E-2 EADs has been in effect in varying degrees since November 2021 so it is not “super new” as of the time of this post in August 2022, but many people on L-1s and E-2s are just now renewing their status, and only now learning about this very nice benefit.
Note: To be clear, this policy change eliminates the requirement to file an I-765 application for work authorization but it does NOT eliminate the need to file an I-539 application to “extend status” for L-2 and E-2 dependents who plan to stay beyond their initial period of admission.
Further Note: The L-2 and E-2 work authorization is for spouses.
Children are not authorized to work.
This is a benefit for spouses only.
Unfortunately, while L-2 and E-2 spouses are no longer subject to an EAD requirement, H-4 spouses who are eligible for work authorization after the H-1B spouse has an approved I-140; the H-4 spouses still must obtain an EAD (Employment Authorization Document).
But USCIS has expanded the validity period of a receipt for certain H-4 EAD extensions.
The receipt rule now benefits some H-4 EAD holders for up to 540 days.
The rules are actually somewhat confusing on the validity period of receipts.
H-4 EAD holders should use this page to assess how long your receipt allows for ongoing work authorization.
Overall, the processing of EADs (Employment Authorization Documents) has been an extremely frustrating situation going back to the Trump Administration and continuing well into the pandemic.
But recently, in the last 3 months, USCIS has made a deliberate effort to get EAD processing times back under control and deal with its backlog.
For example, very recently some EADs for F-1 international students seeking OPT were issued in 6-8 weeks after filing, which is fast even for traditional pre-pandemic times.
The availability of L-2 and E-2 work authorization “incident” to status is an example of a straightforward policy change that does a lot of good.
Let’s hope that USCIS can continue its trends towards clearing backlogs and making it easier for authorized foreign nationals to document their ability to work.
