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H-4/H-4 EAD

Completing Form I-9 Under USCIS’ New Policy Automatically Extending EADs for Some E, L, or H-4 Dependent Spouses

USCIS has updated its Policy Manual to allow for automatic extension of some EAD renewals as a result of the settlement reached in Shergill et al. v. Mayorkas, the class action lawsuit filed by Reddy & Neumann Senior Associate Steven Brown, together with Jonathan Wasden from Wasden Banias and Jesse Bless from the American Immigration Lawyers Association. 

Beginning November 12, 2021, the EAD of an E and L dependent spouse, and employment authorization and EAD of an H-4 dependent spouse, will be automatically extended for a period of up to 180 days if:

  • The dependent spouse properly filed an Application for Employment Authorization (Form I-765) for a renewal of their E, L, or H-4 dependent spouse-based EAD before the current EAD expired; and

  • The dependent spouse has an unexpired Form I-94 indicating valid E, L, or H-4 derivative status.

When employers are completing the I-9 process, the employee may provide the following combination of documents to evidence the automatic extension of the previous EAD:

  • The facially expired previous EAD stating Category A17, A18, or C26, as applicable;

  • An I-797 Receipt Notice for Form I-765 with Class requested in the same category as the expired EAD (either “(a)(17),” “(a)(18),” or “(c)(26),” as applicable), and showing that the renewal application was filed before the EAD expired; and

  • An unexpired Arrival-Departure Record (Form I-94) reflecting H-4, E, or L derivative status, as applicable.

With this document combination, the expired EAD is considered unexpired and acceptable as evidence of identity and employment authorization for completion of Employment Eligibility Verification (Form I-9). Reverification of employment authorization is required at the end of the automatic extension period.

Any such automatic extension will terminate automatically on the earlier of:

  • The end of the validity period of the nonimmigrant status, as shown on the Form I-94;

  • The approval or denial of the application to renew the previous EAD using Form I-765; or

  • 180 days from the date of the expiration of the previous EAD.