Ask Sophie™: Do employees have to stop working until they get their EAD?

Dear Sophie,

One of our employees is on an H-4 visa and has an Employment Authorization Document. It’s been five months since he filed to renew his EAD, which will expire next month. Is there any way to expedite this process? If he doesn’t receive his new EAD card before his old one expires, does he have to stop working? Because it’s taking so long to get EAD cards, we’re worried about another of our employees who has an L-2 visa with an EAD scheduled to expire early next year. 

In addition, the employee who is on an H-4 visa wants to travel to India with his family to visit relatives because it’s been more than three years since he last went. Will he and his family be able to return to the U.S. after four weeks?

— Mindful Manager

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Summary: Unfortunately, there’s no way to expedite the EAD renewal process. Yes, if an employee does not have a valid H-4 EAD card he will have to stop working. However, there’s good news for your H-4 employee: The EAD of H-4 visa holders has been extended for up to 540 days if a renewal application is pending with USCIS. There’s also good news for your L-2 employee: L-2 visa holders no longer need to file for an EAD card since they are now authorized to work as long as their L-2 visa remains valid, and they have a USCIS notice about the change. Keep up to date on the latest immigration news by subscribing to our monthly newsletter.

Full Ask Sophie™ article:

Thanks for reaching out to me with all your questions about Employment Authorization Documents (EADs), otherwise known as work permits. My colleague Lynda Hagerty and I recently chatted about the changes introduced by U.S. Citizenship and Immigration Services (USCIS) to reduce case backlogs and processing times and improve the quality of service. One area USCIS has been focusing on is reducing the processing times for EADs and extending their validity to avoid employment disruptions.

For the past few years, USCIS has been backlogged due to the pandemic, funding issues, and reliance on paper-based processing for most immigration benefits. Right now, USCIS is taking anywhere from 5 to 9.5 months to process an H-4 EAD application or extension, depending on the USCIS service center that is handling the request.

While USCIS is working to expand premium processing to additional immigration forms, it remains unavailable for Form I-765, which is used to apply for and renew work authorization. (With premium processing, USCIS guarantees to process an application within 15 days for a fee.) 

However, there’s good news for you and your employees! Read on!

Work permits for H-4 visa holders

H-4 visa holders, who are the spouses of H-1B visa holders, were offered some relief this year in the EAD process. In May, USCIS issued a temporary rule designed to reduce EAD backlogs, as well as the stress on individuals holding H-4 visas, such as your employee and their employers. These visa holders are eligible to have their EADs extended for up to 540 days if the individual has a renewal application pending with USCIS on or after May 4 or files a renewal application on or after May 4, 2022. 

This extension is even available to individuals whose employment authorization may have lapsed after an initial 180-day extension period but files for renewal during the 540-day period. This temporary rule is in effect through Oct. 15, 2025.

Work permits for L-2 visa holders

USCIS issued a policy announcement last year stating that it considers spouses who have E visas and L visas to have employment authorization as long as their visas remain valid. In other words, individuals who hold L-2 visas, and E-1, E-2, and E-3 dependent spouse visas no longer have to file Form I-765 to apply for or renew work authorization.

Earlier this year, USCIS and U.S. Customs and Border Protection (CBP) began issuing Form I-94 arrival/departure records to E and L spouses who are admitted to the U.S. or are adjusting their status while in the U.S. or are extending their stay with the new designations E-1S, E-2S, E-3S, and L-2S. An individual who holds an I-94 that has one of these new codes is equivalent to an EAD card.

E or L spouses age 21 and older with an unexpired Form I-94 that USCIS issued before Jan. 30, 2022, should have received a notice in April of the change, which I suspect is the case with your employee who is on an L-2 visa. That notice along with a valid I-94 serves is equivalent to an EAD card.  If your employee is under 21 or never received the notice, the employee should email [email protected] to request a copy.

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USCIS Expedite Requests

Another option (with mixed results) is the USCIS Expedite Request. If your company might face severe financial loss if these work permits are delayed, that would be a basis for you to make an inquiry, and you may be able to help obtain some relief for any employees long-awaiting an EAD.

Now let me dive into your last question….

Returning to the U.S. after traveling abroad

Individuals who went through a change of status to their current visa or renewed their visa while in the U.S. and do not have a valid visa in their passport risk being unable to return to the U.S. for several months or even more than a year due to the wait times to get a visa interview at a U.S. embassy or consulate. The U.S. Department of State’s Visa Appointment Wait Times page allows you to check the estimated wait time for a nonimmigrant visa interview appointment at a U.S. embassy or consulate.

While some individuals may be eligible for an interview waiver if they have previously gone through a visa interview, these waivers are at the discretion of each embassy and consulate. I suggest consulting an immigration attorney to discuss the risks and options available to your employee.

Thank you for your mindfulness in supporting your team!

— Sophie

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The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

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