Immigration, Small Law Firms

Work Authorization Victory For Spouses Of Visa Holders

The settlement is a welcome reprieve, but more is still needed.

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The United States Citizenship and Immigration Services has reached a settlement involving the processing delays of work permits for the spouses of certain visa holders. The arrangement is significant for the spouses of work visa holders to get employment themselves when they accompany that worker to the United States. It will allow them to seek and keep employment while their work authorization is still being processed.

Until the settlement was reached in November 2021, these dependent spouses had to wait six to 10 months to receive work authorization. Such delays created difficulty for not just the spouses themselves, who were then unable to work, but created stress for the principal visa holders, as well as their U.S. employers.

The settlement, seen as a welcomed reprieve, has led to new policy guidelines by USCIS allowing the spouses of H-1B, L, and E visa holders, in certain circumstances, to receive automatic extensions to work for 180 days while their renewal applications remain pending.

L and E visa holders will be able to work within the parameters of what’s known as, “incident to status.” That means that by virtue of holding a dependent visa, they will be permitted to work in the United States.  

For this new policy to work, the Department of Homeland Security will have to make adjustments in its I-94 system, the system for processing international travelers, to indicate that these visa holders have permission to work. Additionally, DHS will also have to update its Form I-9 document guidance to indicate that the Form I-94 will be permissible evidence to work.

However, until DHS makes those changes, just simply having an E or L visa and qualifying for ‘incident to status’ will not satisfy work permit requirements. Therefore, in my opinion, E and L visa holders must continue to apply for employment authorization renewals until new guidance is issued. The good news is that because of this settlement, even if the work permit is not approved, the pending application itself may allow work permission. 

Unfortunately, spouses of H-1B visas do not have “incident to status” privileges. H-1B visa holders are employed across a broad spectrum of industries, most specifically technology. Their dependents, who hold H-4 visas, have only been allowed to work in the U.S. since 2015, through Obama-era regulations. Therefore, the policy is a little different for them. 

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Only those H-4 visa holders waiting for a green card with an approved Form I-140, can work. Those applying for work authorization for the first time still have to wait for the approval. But those who apply to renew their work authorization document will have 180 days to work in the interim. The automatic extension will end when the first of the following two happens: when their I-94 expires or their application is denied.

Among its requirements for proving eligibility for automatic extension of work permission under its new guidelines, USCIS is requiring visa holders to provide the following:

  1. A Form I-94 indicating unexpired H4, E, or L status
  2. Evidence of a timely filed renewal application, and
  3. The facially expired work permit issued under the same category.

This guideline, however, has at least one major flaw. USCIS guidance to provide an unexpired Form I-94 is challenging and will lead to complications. A visa holder’s work permit usually carries the same expiration date as their visa and Form I-94. When the work permit expires, it’s usually an indication that the visa and I-94 have also expired.

Spouses could go to the consulates to renew their visas and receive a new I-94 upon entry. But with pandemic closures, reduced operating hours, and backlogs, it will be hard for people to get appointments to renew their visas at consulates abroad.

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On most occasions, visa holders file within the U.S. to renew both their visa and work authorization applications together, using separate forms. When the visa is renewed, a new Form I-94 is automatically issued. Unfortunately, processing times for both applications are now severely delayed. In my opinion, the agency should remove the need for an “unexpired” Form I-94, simplifying the process.

Additionally, I think it’s time USCIS removed the biometrics requirements from all Form I-539s, the form that is used to renew dependent visas. As I have written before, this Trump-era requirement is mainly responsible for creating backlogs for spouses’ visas. In the past, spouses and children would have their visa applications approved along with the principal visa holder’s application. That’s no longer the case. The biometrics requirement that the last administration added for dependents instantly decoupled the applications, entering the spouse’s application in the slow lane. Removing this one requirement would reduce the workload of USCIS immediately and relieve the backlog significantly.

In the meantime, the new policy guidelines are welcome and will certainly improve this complicated process. But more is still needed, and I hope we will see those changes soon.

Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She is a Puget Sound Business Journal 2020 Women of Influence honoree.  Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email

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