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

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

TechCrunch+ members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.

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? Does he have to stop working if he doesn’t receive his new EAD card before his old one expires?

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 H-4 visa employee wants to visit his family in India 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

Dear Mindful,

Thanks for reaching out to me with all your questions about Employment Authorization Documents (EADs), otherwise known as work permits. The U.S. Citizenship and Immigration Services (USCIS) has introduced a few changes to reduce case backlogs and improve the quality of service, and one area it has been focusing on is lowering the processing times for EADs and extending their validity to avoid employment disruptions.

For the past couple of 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 five months to 9.5 months to process an H-4 EAD application or extension, depending on the USCIS service center 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!

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 and their employers. These visa holders can have their EADs extended for up to 540 days if the individual had a renewal application pending with USCIS on or after May 4 2022, or had filed a renewal application on or after that date.

This extension is also available to individuals whose employment authorization may have lapsed after the initial 180-day extension period, provided they have filed for renewal during the 540-day period. This temporary rule is in effect through October 15, 2025.

Work permits for L-2 visa holders

The 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 their 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., 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 and has one of these new codes is considered equivalent to one holding an EAD card.

E or L spouses above 21 years old with an unexpired Form I-94 that USCIS issued before January 30, 2022, should have received a notice about the change in April, which I suspect is the case with your employee who is on an L-2 visa.

That notice, along with a valid I-94, is equivalent to an EAD card. If your employee is under 21 or never received the notice, they should email E-L-married-U21@uscis.dhs.gov to request a copy.

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, you can make an inquiry and 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

People whose current visas had a change of status, or had 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 U.S. embassies or consulates. The U.S. Department of State’s Visa Appointment Wait Times page allows you to check the estimated wait time for a non-immigrant visa interview appointment at a U.S. embassy or consulate.

While some individuals may be eligible for an interview waiver if they previously had 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

Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.

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

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!