An EAD is a wallet-sized card issued by USCIS that can be used as a List A document (evidence of both identity and US employment authorization) [1]. EADs issued since 2017 look like this:
As of 2019, USCIS ominously states that at this time, the USCIS# on an EAD is just the holder's Alien Number, except that an Alien Number is written with a leading letter A
and the USCIS Number is not [12]. The USCIS Glossary has two separate entries for Alien Number
and USCIS Number
, which is an additional indication that at some point in the future, the two numbers may become different, but this hasn't occurred yet.
According to USCIS, there are three different categories of aliens who are eligible for work authorization in the US [2]:
(a) Aliens whose status in the US authorizes them to work for any employer
(b) Aliens whose status in the US authorizes them to work for a specific employer
(c) Aliens whose status in the US makes them eligible to apply for employment authorization
An alien described in section (a) is automatically work-authorized simply by virtue of their status. This category includes lawful permanent residents, asylees, refugees, and aliens with Temporary Protected Status (TPS) [3][44]. A lawful permanent resident is not issued an EAD, because the Green Card serves the equivalent purpose, but any other alien described in section (a) may apply for an employment authorization document to use as proof of their work authorization. Depending on the specific category, some aliens described in section (a) may also use alternative documents as proof of work authorization rather than an EAD (see for example [6]). If an alien described in section (a) chooses to be self-employed, then an EAD is not necessary; the EAD is evidence of employment authorization, but the employment authorization itself is an inherent aspect of their status.
Aliens described in section (b) include H-1B, L-1, and TN nonimmigrants. These aliens are sponsored by a particular employer and do not receive an EAD [4].
Aliens described in section (c) include international students, adjustment of status applicants, J-2 nonimmigrants, and some H-4 nonimmigrant spouses [5]. For example, a J-2 nonimmigrant may not begin working immediately upon their admission to the US, but rather, their J-2 status makes them eligible to apply for an EAD, and if the EAD is granted, then they are allowed to work in the US. Similarly, if an alien has a pending application for adjustment of status, this does not mean they are automatically work-authorized, but it means they can use their pending application to separately apply for work authorization.
The category code, such as C09
on the image shown above, refers to a particular paragraph of 8 CFR §274a.12: for example, if an alien requests an EAD based on 8 CFR §274a.12(c)(9), which means adjustment of status applicant, the alien's EAD will have the code C09
.
As special cases, A17 means dependent spouse of E-1/E-2/E-3 worker, and A18 means dependent spouse of L-1 worker [13] but these categories are not mentioned in 8 CFR §274a.12.
The codes C09P
and C16P
have the same meaning as C09
and C16
, respectively [16]. The letter P
means that the EAD is a combo card that also serves as Advance Parole (see below) [14][15].
Aliens who are authorized employment incident to status (described in section (a)) are authorized to be employed in the United States without restrictions as to location or type of employment
[3], so they can work for any employer unless otherwise prohibited by law (e.g., some employers must hire US citizens only).
Aliens described in section (c) may be subject to restrictions on their employment, however most subcategories do not have any such restrictions.
For instance, USCIS declined to impose any restrictions as to the occupations that H-4 EAD holders may work in [24]. This is also true of other dependent categories: if an alien is described in section (b), and if their dependents are eligible for work authorization under section (c), then the dependents' work authorization does not have the same restrictions as the principal alien; they can work in any occupation. These dependent subcategories are: A17, A18, C01, C02, C04, C05, C07, C12, C26, and C34. However, a C12 spouse does have the same geographical restriction as the principal [5].
Some categories in section (c) are based on a pending application for a status that grants work authorization incident to status: for example, category C09 is based on a pending application for adjustment of status to lawful permanent resident (category A01). This eligibility category was codified in 1981. The INS explained that this discretionary grant of employment authorization was based on the alien's pending application for a permanent status in the United States [30], and indicated that some classes of employment authorized aliens such as H-1 and L-1 (listed in 8 CFR §109.1(a)(6), which later became 8 CFR §274a.12(b)) may only engage in employment consistent with their status, while imposing no such restriction on applicants for adjustment of status or asylum [29]. Adjustment of status applicants thus became eligible for unrestricted employment authorization, which is still the case today [25]. Other subcategories in this group are C08, C09, C10, C16, C19, C20, C22, and C24.
Notably, however, the F-1 OPT EAD (C03A, C03B, or C03C) is restricted. The regulation states that "a student may apply to USCIS for authorization for temporary employment for optional practical training directly related to the student's major area of study." [28] USCIS and ICE have interpreted this to mean that the EAD, once granted, may only be used for employment related to the student's major [26][27]. For example, even if the F-1 nonimmigrant is maintaining employment related to their field of study at all times, they should not attempt to engage in unrelated side employment, such as driving for Uber or Lyft. ICE recommends that students maintain evidence that their employment is related to their degree. That being said, an OPT EAD holder is authorized for ordinary full-time employment, contract (i.e., 1099
employment), and self-employment [27]. M-1 OPT EAD holders (category C06) are similarly restricted to employment in their field of study [5][26].
Refugees and some asylees [6] will receive an EAD without having to make a separate application. An alien who qualifies for an EAD (see above) but does not receive one automatically must file Form I-765 with the required evidence stated in the form instructions [7].
Not necessarily. For example, DACA beneficiaries qualify for EADs [5] but it is clear that they are not lawfully present in the US. However, in some cases, an EAD might be usable as evidence of legal status. For example, see [8].
There is one situation where the approval of an EAD application actually gives legal status: if an F-1 international student obtains a post-completion OPT EAD, they receive a period of status until 60 days after their employment authorization expires [9].
There is also one situation where the approval of an EAD application does not confer any status, but does protect the alien from unlawful presence, namely: when an alien holds a compelling circumstances EAD
(category (c)(35) or (c)(36)). The EAD prevents the alien from accruing unlawful presence for as long as it remains valid. In addition, unlawful presence also does not accrue while the application for the compelling circumstances EAD is pending, provided that the application was timely filed and non-frivolous. [10][11]
In all other cases, when USCIS approves an EAD, they are only granting employment authorization to the applicant, and not any other immigration benefit.
As mentioned above, approval of an EAD does not confer status. It therefore stands to reason that, when an EAD expires, it does not cause the bearer to lose status, either.
This is particularly confusing for adjustment of status applicants, who sometimes assume that obtaining an EAD based on their pending I-485 gives them a temporary status that enables them to remain in status if their previous status expires or is otherwise lost. In actual fact, an alien who has properly filed a form I-485 is in a period of authorized stay
while their form I-485 is pending [46], regardless of whether they have an EAD or not. If an alien's EAD expires while form I-485 is still pending, therefore, the alien remains in authorized stay, but may lose work authorization.
Unlike a green card, an EAD does not necessarily need to be carried by its holder at all times.
There are two separate issues here. First, there is INA 264(e) [17], which requires aliens in the United States to carry proof of alien registration. An EAD may be used for this purpose [18]; an alien would only be obligated to carry their EAD if they had no other registration document. This issue is also discussed in the general FAQ.
However, another issue is that aliens may wish to carry with them proof that they have legal status or have complied with the immigration laws. While it is not legally required to carry such proof, it may help avoid unnecessary detention based on the suspicion that the alien is not lawfully present. Since an EAD will usually not constitute proof of authorized stay (see above), it is advised to carry the documents relating to the underlying basis of legal status or authorized stay. For example, if an alien has an expired I-94 but has timely filed an I-485, then a copy of the receipt notice should be carried since it is the pending I-485 that grants an authorized period of stay. Such an alien would have an authorized period of stay regardless of whether they had an EAD or not.
Technically, losing the physical card does not revoke your employment authorization but some aliens will not be able to complete Form I-9 without having the card in hand and would therefore be barred from starting new employment. To continue employment with the same employer or engage in self-employment, it is not required to replace the physical card as long as you are still within the validity period for which employment was authorized by USCIS, or you fall into a category for which employment authorization does not expire.
If you do need to replace the physical card within its validity period (e.g., to begin new employment) then you must file Form I-765 again and pay the required filing fee in order to replace the EAD [21]. Some categories of aliens are exempt from paying the fee for a renewal EAD, but a replacement of an EAD that is still within its validity period is different from a renewal. At the time of writing, the Form I-765 instructions state that a fee is always required for a replacement, except for adjustment of status applicants who paid the I-485 filing fee [21]. When filing for a replacement, be sure to carefully read the instructions that are in effect at the time of application.
An expired EAD cannot be used as evidence of employment authorization for Form I-9. If you used your EAD to establish employment authorization when you completed Form I-9, then your employer is required to reverify your employment authorization when your EAD expires [32]. At that point, you must show that you have a new or renewed EAD with a future expiration date, or some other evidence of employment authorization, otherwise your employer must terminate your employment. However, if your EAD is eligible for automatic extensions, then reverification can be completed using the receipt notice for the renewal (we will discuss this below).
Aliens described in section (a) who are maintaining their status continue to be authorized for employment even if their EAD expires since they are employment authorized incident to status. Such aliens may be able to present some other proof of their employment authorization if they do not obtain a new or renewed EAD. They may also begin or continue any employment that does not require Form I-9, such as self-employment.
For aliens described in section (c), however, their employment authorization expires when the EAD expires [33]. Such aliens cannot begin or continue any employment after the EAD expires unless they have obtained a new or renewed EAD, are eligible for an automatic extension (see below), or have some other employment authorization.
Some types of EADs can be renewed. Form I-765 must be used to apply for a renewal EAD. Be sure to read the instructions [21] for details on whether your EAD can be renewed. The earliest date you can apply for a renewal is 180 days before your current EAD expires [31]. It is recommended that you apply as soon as possible since EAD processing times can be several months. If your EAD has already expired, you can still apply for a renewal, but you won't be eligible for an automatic extension.
If you are applying for a renewal of an EAD/AP combo card, the same time frame applies: the earliest date you can file is 180 days before the expiration of your current card [43].
In some cases, applying to renew an EAD causes the original EAD's expiration date to be postponed by 180 days. In order for this automatic extension to occur, all of the following conditions must be met [35]:
- The renewal I-765 application must have been filed while the original EAD is still unexpired. For example, if the last day of your EAD validity is April 27, 2020, then USCIS must receive the new I-765 on or before April 27, 2020. If there is any gap—for example, USCIS only receives the new I-765 on May 1, 2020—then the original EAD expires and the alien must wait for the new EAD to be approved.
- The new EAD application must be for the same category as the original EAD; for example, if the original EAD had code A08 (Compact of Free Association) and the alien has filed an application for a C09 EAD (pending AOS) then the latter application would not cause the former EAD to be extended.
- USCIS must have designated the EAD category as being eligible for automatic extensions.
At the time of writing, the categories that are eligible for automatic extensions are A03, A05, A07, A08, A10, A12, A17, A18, C08, C09, C10, C16, C19, C20, C22, C24, C26, and C31 [50]. In order for a category to qualify for automatic extensions, it must be possible for the underlying basis of eligibility to continue beyond the original EAD expiration date without requiring a separate adjudication [34]. For example, a DACA beneficiary qualifies for an EAD because they have been granted deferred action, which means that in order to renew their EAD, they must apply for an additional period of deferred action. If the additional period of deferred action is not granted by USCIS, there is no basis for a further period of employment authorization. Therefore, DACA-based EADs (category C33) are not eligible for automatic extensions.
For example, if an alien's C09 EAD reaches its printed expiration date when a renewal application is already pending, the original EAD, though expired on its face, is considered to be unexpired for the next 180 days. If the alien is completing Form I-9, they must present the original EAD together with the receipt notice for the renewal application in order to establish eligibility for employment [16][35]. An alien with a C09 EAD should still not procrastinate on filing for a renewal, just in case the renewal happens to take longer than 180 days to adjudicate (which is uncommon, but possible). If the renewal application is still pending 180 days after the original EAD's printed expiration date is reached, then the original EAD finally expires, and cannot be used anymore.
If the renewal application is denied, then the automatic 180-day extension terminates [35]. In that case, an alien described in section (c) must stop working immediately even though their employer may not be notified about the denial. If the renewal application is approved, the alien should be reverified at some point before the end of the 180-day period.
Note that in the case of H-4 EAD and L-2 EAD holders, since the underlying basis of eligibility is a nonimmigrant status, automatic extensions may not extend beyond the period of H-4 or L-2 status, respectively. See the H-1B FAQ and L-1 FAQ for more details. Unfortunately, most H-4 EAD and L-2 EAD holders will not qualify for an automatic extension, because they typically have an I-94 that expires at the same time as the EAD itself. Thus, an H-4 EAD or L-2 EAD holder should make an effort to submit a renewal I-765 as early as possible and hope the new EAD is approved before the old one expires; otherwise they will have a gap in their employment authorization.
There is one exception to rule 2 above: category codes A12 (Temporary Protected Status) and C19 (pending TPS), for the purposes of automatic EAD extensions, are considered as if they were the same code. A TPS EAD holder may also receive an automatic extension without having to apply for one, if such extension is announced in the Federal Register [16].
Note that in the case of an EAD/AP combo card, filing for a renewal does extend the employment authorization, but does not extend the parole authorization.
As of the time of writing (April 25, 2020), the answer is no. Although some news sources reported that USCIS announced automatic 240-day extensions of employment authorization, the actual announcement by USCIS merely reiterates existing policy regarding extensions of H-1B status and other statuses that provide employment authorization as described in section (b). There is no special relief for aliens whose EADs are expiring or have expired.
If you have an EAD, your spouse and children will often, but not always, be able to obtain an EAD in the same category. It is important to remember that their qualification for an EAD usually is derived from their own status, and not from your EAD.
This distinction is often crucial in the case of C09 EADs. An alien qualifies for a C09 EAD if they have filed an I-485 and it is still pending. If a principal I-485 filer has obtained a C09 EAD, and they have a spouse or dependent children, those dependents usually can also file I-485s based on the principal's petition either concurrently with the principal or at a later time. This implies that:
- If a dependent has filed an I-485, then they would also be able to obtain a C09 EAD.
- If a dependent cannot file an I-485 (possibly because the dates have retrogressed since the principal filed) then they would not be able to get a C09 EAD. This is because C09 EAD eligibility is solely based on a pending I-485. One cannot apply for a C09 EAD on the basis that they are the dependent of a person who already has a C09 EAD.
- If the principal doesn't need their C09 EAD for some reason, and chooses not to apply for one, but the dependents have their own pending I-485s, the dependents can apply for EADs without the principal. (However, since there is no application fee for most C09 EADs, this is not typical.)
There is one exception to the general rule. This exception is for categories C35 and C36 (compelling circumstances with I-140) [35]:
- Dependents of C35 EAD holders can apply for C36 EADs.
- The dependent does not need to have a separate petition since the principal's I-140 petition will eventually be usable for adjustment of both the principal and dependents.
- Dependents cannot be granted C36 EADs until the principal has been granted their C35 EAD.
Most employment-based adjustment of status applicants have valid nonimmigrant status (such as H-1B) at the time of filing their I-485. They are not obligated to maintain status after form I-485 is filed [47]; failure to maintain status after the I-485 is filed will not result in a denial. Even still, many employment-based applicants prefer to maintain nonimmigrant status throughout the pendency of their I-485. This is a safeguard against the I-485 being denied for some other reason such as insufficient documentation. A noncitizen who still has nonimmigrant status at the time of their I-485 denial will still be lawfully present and can take some time to wrap up their affairs before leaving the US, seek an extension or change of status, or file a second I-485 with more evidence. A noncitizen who doesn't have valid status anymore, and whose I-485 is denied, is usually required to immediately depart the US due to the lack of a valid status.
Applicants who wish to maintain their nonimmigrant status while their I-485 is pending are occasionally faced with the following issue: typically, they will have filed form I-765 and received an EAD based on their pending I-485 (category (C)(9)). What will happen to their nonimmigrant status if they use the EAD to take up employment?
Most lawyers believe that any use of a (C)(9) EAD will automatically terminate any nonimmigrant status that the noncitizen holds. Those lawyers advise their clients that if they wish to maintain nonimmigrant status, they can apply for a (C)(9) EAD and put it in a drawer somewhere in case they really need it, but when it comes to employment, they should act as if they don't have it. A minority of lawyers will advise clients that as long as they comply with all conditions of their nonimmigrant status, they can use their (C)(9) EAD to take up employment and still keep their nonimmigrant status.
First, we should discuss the part that's not controversial. Regardless of whether an individual has an EAD or not, there are certain conditions of their nonimmigrant status that they must comply with, if they wish to keep that status. For example, in order for an H-1B worker to maintain status, they must have a valid employer-sponsored petition that covers their period of stay in the US, and they must actually do the job that the petition is based on. If they violate these conditions, their status is lost. This implies that if an H-1B worker quits the employer that sponsored their position, and uses their EAD to start working for a different employer without getting a new H-1B petition, they no longer meet the conditions of H-1B status and their H-1B status will automatically terminate [39].
All immigration lawyers also agree that if an I-485 applicant simply files form I-765 to obtain a (C)(9) EAD, but never actually uses that EAD (i.e., they only do activities that would have been legal without the EAD), then their status is not affected.
Finally, it is clear from 8 CFR §214.1(e) that any unauthorized employment whatsoever causes the automatic termination of nonimmigrant status. For example, if an H-4 nonimmigrant doesn't have an EAD, but they start working anyway, they lose H-4 status. But lawyers do not all agree on what happens if a nonimmigrant has a (C)(9) EAD and uses it to take up employment. Employment that is performed by someone with a (C)(9) EAD is authorized employment, because a (C)(9) EAD confers unrestricted work authorization. Therefore, using a (C)(9) EAD to take up employment does not trigger 8 CFR §214.1(e).
What lawyers disagree about is what happens in a situation where a nonimmigrant complies with all the terms of their status, but they also use their EAD. One example was given in the previous paragraph: an H-4 nonimmigrant using their (C)(9) EAD to work (normally, an H-4 nonimmigrant cannot work). Another example would be a full-time software engineer in H-1B status, who has a (C)(9) EAD, who continues doing their day job normally (as is required to maintain H-1B status), but also earns some extra income on the side as a career coach or a tutor for coding interviews. Again, as long as they have a valid EAD, this is authorized employment. But does it cause the termination of their H-1B status?
Most lawyers believe that any use of a (C)(9) EAD automatically causes the loss of nonimmigrant status in almost all cases: for example, any H-1B nonimmigrant would lose status if they used a (C)(9) EAD to start a side job, and an H-4 nonimmigrant can only work if they use a (C)(26) EAD (which is specific to H-4 nonimmigrants); any use of a (C)(9) EAD (based on adjustment of status) would result in the loss of H-4 status. These lawyers advise their clients not to use their (C)(9) EAD if they want to maintain their nonimmigrant status.
These lawyers argue that complying with the terms of their nonimmigrant status while also using the (C)(9) EAD is inherently contradictory. For example, they would argue that H-1B status has an inherent condition to work only for the sponsoring employer(s), therefore, use of a (C)(9) EAD to take up side employment, while completely legal, is still failing to comply with the conditions of the H-1B status, therefore such status is lost. Similarly, they believe that H-4 status has an inherent condition to not work at all unless one is granted an H-4 EAD specifically (category (C)(26)); thus, the use of a (C)(9) EAD would violate the status.
In support of this point of view is an old USCIS page [48] that says H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.
This seems to impose the condition that any employment by an H-1B nonimmigrant that is not based on an approved I-129 is unconditionally considered a violation of status (even if it is authorized anyway, due to having an EAD). However, this wording is no longer present on the USCIS website.
This view is commonly believed by laymen as well, but for the wrong reason. Laymen typically believe that as you use your EAD, your nonimmigrant status automatically changes to EAD status
(sometimes referred to as being on EAD
). As we've explained on this page already, EAD is not a status, therefore this particular argument is without merit.
Some people argue that a principal employment-based nonimmigrant will lose their status if they use their (C)(9) EAD to take up side employment, but a dependent nonimmigrant, or a principal with some other kind of status, will be able to keep their status even if they use their (C)(9) EAD. (For some reason, it seems that lawyers rarely opine about this issue as it applies to dependent nonimmigrants.)
The reasoning behind this point of view is the idea that employment-based principals, such as H-1B noncitizens, have an implicit condition of their status to only work for their sponsoring employer(s); for example an H-1B worker can only work for employers who have filed a form I-129. Therefore, they conclude that even when a noncitizen can legally work for some other employer thanks to having an EAD, it is still a status violation. However, they might still believe that a dependent nonimmigrant, such as H-4, is allowed to use their (C)(9) EAD while keeping their status, because there is no rule that says that H-4 status is incompatible with work. It's simply that H-4 nonimmigrants by default are not work-authorized. But if they somehow become work-authorized, then there is no problem with working and maintaining status at the same time.
A minority of lawyers believe that using a (C)(9) EAD to take up employment will not result in the termination of nonimmigrant status (as long as all conditions of the nonimmigrant status are met). However, this is mostly anecdotal and these lawyers have not given detailed legal reasoning. So we (the authors of the FAQ) will try to do so, even though we are not lawyers.
To argue that one can maintain nonimmigrant status while also using their (C)(9) EAD, one could simply point out that the arguments for the other points of view are not convincing. Nowhere in the laws or regulations can we find a clear statement that an H-1B nonimmigrant may not engage in side employment (provided that they have found a way to make such side employment authorized, i.e. by obtaining an EAD), nor is there anything that says that a requirement of H-4 status is to only work using a (C)(26) EAD and not a (C)(9) EAD. An outdated USCIS web page [48] cannot be regarded as creating a binding legal requirement. Therefore, from this point of view, there no legal reason why the use of a (C)(9) EAD, in and of itself, should automatically and always result in the loss of H-1B or H-4 status. Since there is no legal basis for the termination of status, it means the status is maintained.
This also implies that L-1 and H-1B nonimmigrants, and their dependents, who have applied for adjustment of status and use their (C)(9) EADs, can even continue extending their status afterward, since they are exempt from INA 214(b) [36][37][38].
Some support for this view is found in [41], in which one H-1B nonimmigrant mentions being told by USCIS directly that they can maintain their status if they use the EAD for additional jobs, as long as they don't interfere with the primary job. An internet poster also said in [40] that they had no issue with extending H-4 status despite having used their (C)(9) EAD and admitting this fact to the immigration service. (If using the (C)(9) EAD truly resulted in a loss of H-4 status, it would not be possible to extend status, because you can only extend status while you're still in status.)
Other evidence for this point of view is the fact that, if there really were a requirement to avoid using a (C)(9) EAD in order to maintain status, then one would imagine that USCIS would attempt to enforce it. When an alien applies for extension of stay, change of status, or adjustment of status, they must answer a question about whether they have ever engaged in unauthorized employment, since this can affect their eligibility for the benefit sought. But no USCIS form has any question of the form have you ever used an Employment Authorization Document to engage in any employment that was not authorized by your nonimmigrant status
, and USCIS does not receive this information automatically from anywhere either (since I-9 forms are retained by employers and not sent to USCIS). Since USCIS doesn't ask about this behaviour, it's evidence that they don't care.
The authors of this FAQ believe that a nonimmigrant, who complies with all terms of their status, can use a (C)(9) EAD to take up employment without terminating their status, because the contrary views are not well supported. This is, of course, not legal advice.
As an aside, there is some evidence that USCIS has different rules for the compelling circumstances EAD ((C)(35) and (C)(36)). In some ways, USCIS seems to treat the compelling circumstances EAD as a pseudo-status (for example, C36 is like the dependent status
of C35 as described in the previous section). The Federal Register article that announced the introduction of the compelling circumstances EAD [42] also mentions several times that nonimmigrants may lose their nonimmigrant status if they use a compelling circumstances EAD. This should not be read as applying to (C)(9) EADs.
USCIS takes the position that an alien must be inside the United States in order to file Form I-765 [7][21][45]. It is not clear how strictly USCIS enforces this requirement, although the requirement to appear for biometrics for most EAD application types may serve as a (possibly unintentional) form of enforcement. It is generally not required to remain in the United States for the entire time while the I-765 is pending. However, one should be aware of the fact that departure from the United States may trigger the abandonment of a pending change of nonimmigrant status. If the EAD application is based on the status sought, it too must be denied. For example, if an alien in TD status files concurrently for a change of status to L-2 status, and an L-2 EAD, then leaves the US while the change of status is pending, the L-2 change of status will be denied. Since the L-2 change of status is denied, there is no basis to approve an L-2 EAD.
The EAD category code A17 is used for almost all E spouse EADs (other than the special case of the E-1 TECRO and E-2 CNMI categories). The code A18 is used for L-2 EADs [13]. As of November 12, 2021, USCIS considers these dependent spouses to be employment authorized incident to status [51]. This means that, like lawful permanent residents, they derive automatic work authorization from their status, without needing any separate permission from USCIS in order to work, as long as they maintain that status.
This has not always been the case, despite the fact that these category codes begin with the letter A
. In the past, USCIS policy was that E and L spouses could not work until USCIS granted them an EAD. At issue is the statutes [22][23] that authorize E and L spouses to engage in employment. These statues have the wording the Attorney General shall authorize the alien spouse to engage in employment in the United States
. One way to interpret this is that it requires USCIS to act affirmatively to grant employment authorization. This is the position that USCIS historically took. However, in the case In re Do Kyung Lee (BIA Nov. 5, 2013) [49] (concerning an E-2 spouse who was denied adjustment of status on the basis of unauthorized employment), the BIA rejected this interpretation and found that, since the federal regulations did not list E-2 spouses under the category of aliens who must apply for employment authorization
, the statute together with the absence of such a regulation implies that E-2 spouses are, in effect, employment authorized incident to status. Because this was an unpublished decision of the BIA, it did not create a binding precedent, and USCIS continued to follow its interpretation that E and L spouses are not employment authorized incident to status, and refused to allow evidence of E and L status to be used to complete I-9 verification. Eventually, DHS was sued directly in federal court [52] in the case Shergill et al. v. Mayorkas, alleging that USCIS policy was illegal. The case was settled when DHS finally agreed that E and L spouses are employment authorized incident to status.
Although USCIS agreed as of November 12, 2021 to consider E and L dependent spouses to be employment-authorized incident of status, this did not immediately provide E and L dependent spouses with any way to complete Form I-9 other than by presenting a USCIS-issued EAD, which usually takes several months to obtain. Finally, on March 18, 2022, USCIS issued a policy alert stating that in the future, newly admitted E and L dependent spouses will receive an I-94 indicating their status as a dependent spouse and that can be used as a List C document for Form I-9 (thus obviating the need for an EAD). USCIS also stated that E and L dependent spouses who did not already have such I-94s would receive a separate notice that could be used to satisfy I-9 requirements. [53]
[1] Form I-9 Acceptable Documents - USCIS
[2] 8 CFR §274a.12
[3] Ibid., (a)
[4] Ibid., (b)
[5] Ibid., (c)
[6] I am a refugee or asylee; How do I show my employer that I am authorized to work in the United States? - USCIS
[7] I-765, Application for Employment Authorization - USCIS
[8] REAL ID Frequently Asked Questions - DHS
[9] 8 CFR §214.2(f)(10)(ii)(D)
[10] 81 FR 82425–82426
[11] Employment Authorization in Compelling Circumstances - USCIS
[12] Instructions for Form I-9, Employment Eligibility Verification
[13] Employment Authorization Document Codes - USCIS
[14] USCIS Employment Authorization Documents - Fiscal Year 2017 Report to Congress
[15] Special Advisory Regarding Combination Employment Authorization/Advance Parole Card - USCIS (retrieved August 24, 2019)
[16] USCIS Handbook for Employers M-274, Section 4.4. Archived December 20, 2021 from the original.
[17] INA 264(e) (8 USC §1304(e))
[18] 8 CFR §264.1(b)
[19] 81 FR p. 91654
[20] 8 CFR §1.4
[21] Instructions for Application for Employment Authorization
[22] INA 214(c)(2)(E) (8 USC §1184(c)(2)(E))
[23] Ibid., (e)(6)
[24] 80 FR p. 10294
[25] Murthy Law Firm - What You Want to Know About the Pending I-485-Based EAD
[26] Students and Employment - USCIS
[27] SEVP Policy Guidance 0801-02: Updates to Post-Completion Optional Practical Training
[28] 8 CFR §214.2(f)(10)(ii)(A)
[29] 46 FR pp. 25079–25081
[30] 45 FR pp. 19563–19564
[31] Employment Authorization Document - USCIS
[32] Completing Section 3, Reverification and Rehires - USCIS
[33] 8 CFR §274a.14(a)(1)(i)
[34] 8 CFR §274a.13(d)
[35] 8 CFR §204.5(p)
[36] 8 CFR §214.2(l)(16)
[37] Ibid., (h)(16)(i)
[38] 9 FAM 402.10-10(A)(c)
[39] Cronin memo - INS, 2000
[40] How can H4 maintain legal status after using EAD? (Post #17)
[41] Concurrent work on EAD and H1B (Post #20)
[42] Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers (81 FR 82398–82492)
[43] You can get this information from Ask Emma
on the USCIS website, by asking When can I renew my combo card?
[44] In a 2003 memo, USCIS clarified that the language must apply to the Service for a
document evidencing such employment
and as evidenced by an employment authorization document issued by the Service
do not mean that section (a) aliens need approval from USCIS in order to be employment-authorized. They receive employment authorization automatically when their status begins. However, some section (a) aliens cannot prove their employment authorization without an EAD, and so must apply to USCIS for an EAD before they can complete form I-9.
[45] Form I-765, 08/25/20 edition, page 4
[46] USCIS-AFM 40.9.2(b)(3)(A), archived May 7, 2020
[47] USCIS-PM 7(B)(4)(G)
[48] Who can an H-1B alien work for? (Wayback Machine)
[49] https://allusavisas.files.wordpress.com/2014/01/184439289-do-kyung-lee-a089-047-352-bia-nov-5-2013.pdf
[50] Automatic Employment Authorization Document (EAD) Extension - USCIS. Archived January 5, 2022 from the original.
[51] USCIS-PM 10(B)(2)
[52] https://www.wasdenbanias.com/shergill
[53] https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220318-EmploymentAuthorization.pdf