Holders of a general work permit can legally work in the USA. We will inform you about the so-called Employment Authorization Document (EAD) and explain in particular the requirements, application period and important points to keep in mind. On request, we will help you to apply for a general work permit for the United States. Please feel free to contact us!
On November 12, 2021, the US Citizenship and Immigration Services (USCIS) issued new guidance on the work option for accompanying spouses of L, E, and certain H-1B principal applicants:
According to the new regulation, spouses under L-2 and E "dependent status" will no longer have to apply for a separate general employment authorization document (EAD) in the US in order to work legally in the country. Until now, these individuals could only work if they applied for and were approved for an EAD through USCIS after they entered the country. An automatic extension of existing EADs in connection with renewal applications was also adopted.
These changes are based on a settlement agreement of a lawsuit between the US Department of Homeland Security (DHS) and the American Immigration Lawyers Association (AILA). Numerous affected persons had sued due to the processing time of new and renewal EAD applications, which in some cases exceeded 12 months.
What are the benefits of the new rule for E, L-2, and H-4 spouses?
1. E and L-2 spouses already eligible to work with legal status (I-94)
Probably the most significant change is that accompanying spouses* with a valid E-1, E-2, or L-2 status in the US may work in the US without restriction even without first applying for an EAD. This means that the cumbersome and lengthy application for a separate EAD after entry is no longer necessary. Legal residency status (I-94) in the US therefore automatically entitles the holder to work. H-4 spouses, who are generally only entitled to work in the US under certain exceptions, unfortunately do not benefit from this change.
The CBP (US Customs and Border Protection) announced the new I-94 classifications for L-2 and E-1/E-2 family members upon entry on January 31, 2022. These will differentiate more specifically between spouses* and children in the future:
Unfortunately, not all CBP border agencies have yet implemented these changes. That is, there is still uncertainty for E or L spouses* as to which I-94 classification they will receive upon entry.
Furthermore, it has not yet been officially confirmed whether these new classifications will also be applied when entering the country by land. We recommend that all affected travelers obtain information in advance from a CBP office, if necessary. It is recommended to carry a copy of the (international) marriage certificate with you when entering the country.
It is now clear that spouses already in the U.S. under the old "I-94 classification code" cannot obtain the new designation within the US. They are forced to leave the US in any case. They will be forced to leave the US and re-enter the country to update the I-94 with the suffix "S". Individuals whose I-94 does not show this suffix will still not be allowed to work in the US without an EAD.
As an example, a spouse of an L-1 visa holder obtains an L-2 visa, enters the country with it, and now wants to work locally. If her I-94 already shows "L-2S" status, she could work directly (without first applying for an EAD) in the US for any employer or independently. The I-94 document would then be sufficient as proof of work authorization to the employer. However, if the I-94 still only shows "L-2" (without the suffix "S"), the individual would not be allowed to legally work until an EAD is obtained. Therefore, EAD applications will continue to be available on a regular basis. Please see the rest of the article for more details on the application process.
Unfortunately, there is still some planning uncertainty for E and L spouses who are willing to travel.
2. Automatic EAD extension for certain H-4, E and L-2 spouses
The updated guidelines also provide that certain accompanying spouses in H-4, E, and L-2 status are now eligible for an automatic extension of an existing employment authorization document (EAD), but only if the following conditions are met:
Provided both criteria are met, the validity period of the existing EAD is automatically extended and the E, L-2, or H-4 spouse can continue to work until the expiration date of the I-94, approval or denial of the EAD renewal application, or 180 days after the stated expiration date of the existing EAD (whichever comes first) - even if the current EAD has already expired during the renewal application.
After implementation of the changes mentioned in 1. above, E and L-2 visa holders who are in the EAD renewal application process could theoretically also leave the US and then be able to legally work in the U.S. with a new "E or L-2 Spouse" status (I-94).
The general work permit for the US, the Employment Authorization Document (EAD), entitles the holder to work legally in the United States during the period of validity of the EAD.
Often married spouses who hold a derived visa (e.g. E-1, E-2, L-2 or J-2 visa) apply for an EAD. The issuance of such a derived visa allows family members to work in the United States. However, you must apply for the general work permit in the first place.
The EAD document is issued by the US Citizenship and Immigration Services (USCIS) and is similar in shape and size to a credit card. The EAD card contains general information about the holder and certain security features:
The signature of the holder is no longer listed.
The EAD is the size of a credit card
The design of the Employment Authorization Document was last changed in May 2017. By using special security features, the EAD card is even more counterfeit-proof and the risk of fraud has been further reduced.
With the EAD card, certain groups of people can apply for a work permit. If you have a residence permit or visa for the United States, you can apply for a general work permit (= Employment Authorization Document). You qualify for an EAD:
If you are a US citizen, Green Card holder (Lawful Permanent Resident) or Conditional Permanent Resident, you do not need an EAD.
The application for a General Work Permit and its renewal or reissue in the event of loss is made directly on site in the United States at the U.S. Citizenship and Immigration Services (USCIS). The application for a General Work Permit in the U.S. is submitted on Form I-765 (Application for Employment Authorization). The EAD form currently comprises 7 pages, in which detailed information on the applicant is requested.
To apply for an EAD, applicants must
The application is then sent by mail to the responsible USCIS Service Center. Responsibility depends on the group of people to which you belong as well as your place of residence in the United States. For this reason, it is very important to check in advance in each individual case to which address the application must be sent.
In addition to applying by mail, under certain circumstances it is also possible to apply for the EAD online. However, this depends on the respective visa category. You can find more information on the official USCIS website.
All supporting documents, such as marriage certificates, which are not available in English, must also be translated by a sworn translator and submitted in certified form.
Since the details of the application process change from time to time, fees are adjusted or certain procedures are changed, applicants should read and follow all instructions and completion instructions of the USCIS carefully before each new application. Only a correctly completed application will result in rapid processing and approval. You should always download the current I-765 application form and read the instructions from the USCIS.
Please note that a new I-765 form is often provided by the USCIS. Applicants must submit the current I-765 document. Older versions are not accepted by the USCIS, which may result in your EAD application being rejected.
Before submitting the EAD application, you should therefore check the update date on the I-765 form. In the lower left corner on both sides of the I-765 form you will find the date of the form version. You can always download the latest version from the official USCIS website.
Are you interested in EAD?
We will gladly assist you with the application for a general work permit.
Use the opportunity to apply for the Social Security Card together with the General Work Permit. The advantage is that there is no need to visit a Social Security Administration Office in person.
If your EAD application has already been submitted without a Social Security Card, you will still have the opportunity to come in person after receiving the EAD.
The processing times of the US Immigration Service for EAD applications have increased significantly over the last few years. In the past, the USCIS had set time limits for the completion of a particular application process. For EAD applications, this time window was 90 days.
Average processing times for I-765 applications are now communicated by USCIS Service Center. The EAD Processing Times currently vary from 4 to 13 months. The current Case Processing Times can be found on the official USCIS website.
These delays in the processing process cause serious problems for many applicants who rely on the timely approval of a valid work permit, as they are not allowed to take up work in the USA without the EAD.
In fact, an EAD is only valid at the moment it is issued. It is not enough, for example, that an application for an extension of the EAD has been submitted and that the application is "pending". It is also problematic if the validity of an existing EAD is about to expire, because in the worst case the applicant will have to interrupt his work with the US employer for the time being until the new application for a work permit has been approved.
Based on the currently longer processing times, we strongly recommend that you apply as early as possible. If an existing EAD expires and the new work permit is not yet available, the applicant may not work during this time.
Until recently, applicants were allowed to ask the USCIS about EAD applications made 75 days or more ago. However, the USCIS has discontinued these "75-day-inquiries" for EAD applications.
The 75 days was due to the fact that the USCIS wanted to ensure that the processing time of 90 days, which was still specified at that time, was adhered to.
Officially, a case inquiry is now only possible if the average processing times specified on the USCIS website are not met. A "Receipt Date For A Case Inquiry" is indicated there.
If the Receipt Date (= date of receipt) of your EAD application is earlier than this date, you have the option of submitting an Outside Normal Processing Time request.
You can still try to call the USCIS in advance or make a personal appointment with one of the USCIS field offices. At the appointment, applicants should have the confirmation of receipt of the EAD application, an identification document, and ideally a copy of the submitted application.
We recommend that you only become active after 90 days. Of course, you can also try earlier. According to our experience in recent years, the processing process can be speeded up at least somewhat by asking for advice. Some of our customers have finally received the EAD within two to three weeks after inquiries. Unfortunately, there is no guarantee for this and it is necessary to continue to observe how the U.S. authorities behave, especially in view of the increasing processing times.
Once approved, the completed EAD will be sent to you personally by post. If you are not to be found or even moved, the card will be returned to the USCIS.
If the applicant does not contact the USCIS within 60 days for a new delivery to the correct address, the EAD will be destroyed - accordingly, a new application would be required after this time window.
We therefore recommend that you notify the USCIS of any change of address immediately after the move, using the instructions provided by the USCIS.
An EAD is usually issued for a minimum of one year, but this depends on the respective category (E, L-2, F-1, J-2 etc.) and the current residence status.
The work permit can generally be renewed, although renewal depends on your current residence status. The new EAD should be applied for 180 days before the old, still valid EAD expires. EAD applications submitted at an earlier date are not processed by the USCIS.
The question often arises as to what happens if the surname changes after the EAD has been issued - for example, because you have subsequently adopted your spouse's surname?
In this case, a new application for a so-called "Replacement EAD" is also required after receipt of the new passport. The original card can therefore no longer be used. In this case, not only the EAD card will be sent in, but the application fee will also be due again and the waiting period until it is issued will be the same as for the initial application.
In order to be able to continue working, you should have a copy of the original EAD with you and also the Receipt Notice of the new application from the USCIS.
If you have any further questions about EAD or need assistance with the application, please feel free to contact us at any time.
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An Employment Authorization Document EAD is usually issued for at least one year. Of course, it can happen within this period that you find a new job and want to change your current employer in the United States.
If you are in possession of a valid EAD, this is not a problem at all, since the General Work Permit – unlike a U.S. work visa for the – is not tied to a specific U.S. company.
However, you must make sure to apply for a new EAD in time before your current General Work Permit expires.
A Labor Certification is the first step in applying for the Green Card. The application is made by the U.S. employer to the U.S. Department of Labor. This process determines whether or not there is a qualified U.S. employee in the U.S. labor market for the position to be filled. The goal of a Labor Certification is therefore to protect U.S. workers and the U.S. labor market by ensuring that foreign workers cannot replace equally qualified U.S. workers.
Unlike a Labor Certification, which only applies to a specific U.S. employer or job offer, the Employment Authorization Document (EAD) is a general work permit that authorizes the foreign employee to work for any U.S. employer in the United States.
Another difference is that the U.S. employer applies for the Labor Certification at the beginning of the foreign employee's Green Card application. The EAD, on the other hand, is only applied for after the foreign employee or his or her spouse has been granted a residence permit for the U.S. (for instance, in the course of an adjustment of Status, i.e. form I-485).
Finally, Labor Certification and EAD are also distinguished because U.S. law prohibits the foreign employee from paying for the costs of a Labor Certification. On the contrary, the person applying for an EAD is allowed to bear some or all of the costs of the EAD.
