Automating Work Authorization For Nonimmigrant Dependent Spouses

Navigating Form I-9 compliance

An estimated 44.9 million foreign-born people live in the United States, representing 13.7% of the total U.S. population in 2019 (per the most recent data from the American Community Survey). In 2016, the Department of Homeland Security (DHS) believed 2.3 million nonimmigrant workers, students, exchange visitors, diplomats and their relatives were residing in the United States.

Included in these 2.3 million nonimmigrants are H-1B professionals and their H-4 dependents, L-1 intracompany transfers and their L-2 dependents and E traders or investors and their dependents. Critically, work authorization for certain dependent spouses has been enormously helpful for many nonimmigrant families. While regulations at 8 CFR 274a.13(d) provide that employment authorization, Employment Authorization Documents (Form I-766 or EAD), or both, may be automatically extended in certain circumstances, U.S. Citizenship and Immigration Services (USCIS) had long required that certain H-4, E and L dependent spouses obtain an EAD to be able to work in the United States.

DHS policy had previously instructed USCIS to adjudicate EAD applications within 90 days of receipt. This was an acceptable and reasonable timeline for most families, as renewal applications could be filed up to six months prior to the expiration of an EAD. Further, USCIS would also adjudicate dependent filings at the same time as the primary’s filing when premium processing was utilized. This meant approvals could come within 15 days.

However, in 2017, during the Trump Administration, the 90-day processing guidelines were eliminated. Premium processing fees subsequently doubled and USCIS determined that dependent filings would no longer be adjudicated as a courtesy with premium processing. In 2019, wait times became even worse when USCIS began collecting biometrics for dependent extension applicants, even for those who previously had biometrics on file.

These Trump Administration immigration policies, apparently designed to frustrate rather than facilitate immigration benefits, often resulted in EAD renewals taking up to a year to be issued. As a result, the fear of a gap in employment authorization for working dependent spouses became an unfortunate reality for many families.

However, on November 12, 2021, USCIS issued policy guidance to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. In so doing, USCIS also rescinded prior guidance related to the same. This action was prompted by a November 10, 2021, settlement that was reached by the U.S. Department of Homeland Security (DHS) in Shergill et al, v. Mayorkas, due to class action lawsuits that had been filed by H-4 and L-2 plaintiffs, who had experienced gaps in employment authorization and resulting job loss due to exceedingly long wait times to obtain EAD renewals.

As every HR manager is aware, gaps in work authorization and job loss are due to the fact that such employees could not present proof of work authorization. Employers are obligated to verify employment authorization for individuals hired for employment in the U.S. by properly completing Form I-9. This applies to both citizens and noncitizens. When an employee’s work authorization is expiring, employers must request that such employees provide updated proof of ongoing work authorization.

The list of acceptable documents for this purpose can be found at the back of the Form I-9, and an employee may present a List A document or a List B + C document (List A documents demonstrate identity and work authorization; List B documents demonstrate identity; and List C documents demonstrate work authorization).

Cruelly, USCIS had permitted other EAD categories to benefit from automatic 180-day extensions of their EAD if they presented a timely filed receipt notice of their renewal EAD, which was filed in the same category as their prior EAD. However, this courtesy was not extended to certain H-4, E and L dependent spouses.

Consequently, only a new EAD in their possession would allow these dependent spouses to continue their employment without interruption. Fortunately, the Shergill settlement and updated policies now provide that certain H-4, E and L spouses can utilize the 180-day automatic extension if they timely filed an EAD renewal in the same category.

Another significant change that has come about due to the settlement is that E and L spouses are now deemed to be employment authorized incident to status. This means they do not even need an EAD to demonstrate work authorization. In cooperation with U.S. Customs and Border Protection (CBP), USCIS is to reissue I-94s, arrival/departure records issued by the Department of Homeland Security, within 120 days, to reflect that the E or L visa holder is a dependent spouse.  

Currently, there is no indication of dependent spousal status.  The newly issued I-94 will serve as a List C document for I-9 purposes. With the Shergill settlement, employers may accept the following combination of documents for Form I-9 purposes:  an unexpired or facially expired EAD, an EAD (I-765) receipt notice indicating a renewal was filed before the EAD expiration in the same category, and an unexpired I-94, showing valid E, H-4 or L-2 dependent status.

Why is this important for HR? For starters, not having a properly completed I-9 form can result in substantial fines, even for clerical mistakes. In 2020, the minimum fine per individual for paperwork or technical violations increased to $234, while the maximum fine increased to $2,332. Fines and civil penalties for knowingly hiring or continuing to employ unauthorized workers are also substantial.

A first offense can range from $583-$4,667 PER (emphasis added) each Form I-9. Six-figure fines and penalties are not uncommon, as the breadth of the violation and the size of the workforce are variables that drastically impact the amount of fines and penalties that could be issued.

On top of that, as I-9 audits increase in frequency and amount, a lack of I-9 compliance can also trigger investigations by other agencies. For example, when completing Form I-9, employers must also carefully navigate anti-discrimination provisions of the Immigration and Nationality Act (INA), which prohibits unfair documentary practices; citizenship or immigration status discrimination in hiring, firing and recruiting; national origin discrimination in hiring, firing and recruiting; and retaliation or intimidation.

The Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section (IER), enforces this law.  An example of their recent work: On January 10, 2022, Buddy’s Kitchen Inc., a Minnesota-based company that produces and distributes frozen foods, reached a settlement with the Department of Justice for a civil penalty of $40,000.00.  

The department’s investigation revealed that the company routinely discriminated by asking non-U.S. citizens, primarily lawful permanent residents, to present specific, Department of Homeland Security-issued documents to prove their permission to work in the United States, while making no such request of U.S. citizens, as they completed the Form I-9.

It is critical that HR practitioners emphasize to their teams when they are completing or updating Form I-9, that all employees have the right to choose the valid documentation they wish to present to demonstrate that they have permission to work in the United States. Now, as employers complete or update Form I-9s for certain H-4, E or L dependent spouses, the Shergill settlement should remind careful HR practitioners to review Form I-9 policies and procedures.

While certain nonimmigrant, dependent spouses are able to demonstrate work authorization in new ways, much to their relief, these recent changes highlight the dangers employers face if they are not up to speed with the evolving nature of immigration law.