Form I-290B after a denial: motion to reopen, motion to reconsider, or appeal
9 mins read | Oct 16, 2026
THE H-4 AND L-2 EXPOSURE
Contributor
Tukki
Reading time
9 mins read
Date published
Sep 10, 2026
Some of the people on your payroll work on authorization that came from a spouse's immigration status at another company. When that spouse changes jobs, gets laid off, changes status, or the marriage ends, your employee's right to work can end with it. The first anyone hears about it is usually the week a document expires.
The arrangement has a name. Derivative status is nonimmigrant status granted to the spouse or child of someone else's approved petition, along with the work authorization that sometimes rides on it. H-4, L-2 and the E dependent classifications are the ones that turn up most often on a U.S. payroll. Your employee does the job for you, and the expiration date comes out of a petition your company never filed and has no standing to read.
This is written for whoever owns immigration inside the company, whether that's an HR generalist who inherited the file or a global mobility lead running a formal program. It covers:
The individual side of these questions sits in our guides to spouse work authorization visa options and the H-1B spouse work permit.
An H-4 is the spouse or unmarried child under 21 of an H-1B worker. An L-2 is the spouse or child of an L-1 intracompany transferee. E-1S, E-2S and E-3S are the spouses of E-1, E-2 and E-3 treaty workers. All of them hold status because of somebody else's petition, and that is where the similarity stops.
An L-2 or E dependent spouse is authorized to work incident to status, meaning the status itself carries the right to work and no separate application is needed. An H-4 spouse has to apply for an Employment Authorization Document, and only a minority of H-4 spouses qualify to apply at all. Two people hired the same week into the same role can be sitting on completely different footing.
| Dependent status | Work permit required | What evidences authorization on Form I-9 | What breaks it |
|---|---|---|---|
| H-4 (spouse of H-1B) | Yes, Form I-765 for an Employment Authorization Document | Form I-766 EAD, List A, with a printed expiration date | The principal's approved Form I-140 is withdrawn or revoked, the principal leaves H-1B status, H-4 status lapses, or the marriage ends |
| L-2 (spouse of L-1) | No, authorized incident to status | Unexpired Form I-94 annotated L-2S, List C, paired with a List B identity document | The L-1 principal's status ends, the I-94 expires, or the marriage ends |
| E-1S, E-2S, E-3S (spouse of E-1, E-2, E-3) | No, authorized incident to status | Unexpired Form I-94 with the matching annotation, List C, paired with a List B identity document | The principal's status ends, the I-94 expires, or the marriage ends |
H-4 eligibility is the narrow one. An H-4 spouse can apply for a work permit only if the H-1B principal meets one of two conditions:
Both of those conditions live entirely inside another employer's green card process. The card USCIS issues expires on the same date as the H-4 spouse's most recent Form I-94. Its useful life is set by the principal's petition validity rather than by anything your company controls.
L-2 and E dependent spouses have had it easier since 30 January 2022. USCIS and Customs and Border Protection began issuing Forms I-94 that carry the L-2S, E-1S, E-2S and E-3S admission codes.
An unexpired I-94 with one of those codes is evidence of employment authorization on its own. There is still an expiration date on it, and it still tracks the principal's status. The exposure has the same shape even though the paperwork is lighter.
Our guide to Form I-94 covers how to read one.
This is the change most likely to catch an HR team that last looked at dependent work authorization in 2024. A timely filed renewal used to carry an expiring EAD forward automatically for up to 540 days while USCIS worked through the application.
Effective 30 October 2025, that stopped. Unless a law or a Federal Register notice says otherwise, filing Form I-765 on time no longer extends anything. Renewals filed before 30 October 2025 keep the automatic extension they already had.
For an employee on an H-4 EAD, the bridge is gone and the date printed on the card is the date. USCIS advises filing a renewal up to 180 days before expiration for exactly that reason. A renewal filed 30 days out will almost certainly leave a gap.
Current processing times sit on the USCIS case processing times tool, which is worth checking before you decide how early is early enough. Our guide to H-4 EAD processing time tracks what the wait has been running.

Each of these starts at the other employer, and none of them reaches your HR system on its own.
A change of employer brings a new petition and a new validity period, and the dependent has to extend H-4 or L-2 status to match it. The existing work permit keeps the expiration date it was issued with, so an H-4 EAD can lapse while the extension is still pending. USCIS accepts Form I-765 filed alongside Form I-539, and decides the work permit only after it has adjudicated the underlying status.
The regulation at 8 CFR 214.1(l)(2) covers workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN classification, along with their dependents. It gives them up to 60 consecutive days of authorized stay after employment ends, or the end of the authorized validity period if that comes sooner.
Those 60 days preserve the dependent's status, which is what an unexpired H-4 EAD or an annotated I-94 rests on. It is a short window and it runs once per validity period.
That cushion is under review right now. DHS published a proposed rule on 11 September 2026, docket USCIS-2026-0364, that would eliminate the discretionary 60-day grace period at 8 CFR 214.1(l)(2) for those classifications and their dependents. Comments close on 10 November 2026. It is a proposal, so the 60 days still apply today. The rulemaking is worth watching if your workforce leans on that window.
Our post on the H-1B 60-day grace period covers the mechanics.
If the spouse moves to F-1, to another work classification, or becomes a permanent resident, the derivative status that supported your employee goes with it. A change that reads as good news on the other side of the household can put your employee out of work the same month.
Derivative status depends on the relationship. The card in the employee's wallet may still show a future date, and that date stops meaning anything on the day the marriage does.
This is the sequencing mistake that costs the most money and the most goodwill, and it comes up often enough to write into the process.
H-4 status and the H-4 EAD both expire with the H-1B principal's validity period. Renew the dependent side on its own, then watch the principal extend H-1B three months later, and the family files all over again to match the new dates. Two rounds of the same filings inside a year, with a second wait stacked on the first. Here is what each round costs.
| Filing | What it does | Paper fee | Online fee | Premium processing |
|---|---|---|---|---|
| Form I-539 | Extends H-4 status | $470 | $420 | Not available for H-4. Designated only for F-1, F-2, J-1, J-2, M-1 and M-2 classifications |
| Form I-765 | Grants the work permit | $520 | $470 | Not available for H-4. Designated only for the OPT and STEM OPT categories |
Filing the dependents' I-539 and I-765 together with the principal's H-1B extension avoids the repeat. The dependent documents are then issued against the new validity period instead of one that is about to end. That takes coordination across two employers, which is the reason to ask the employee early rather than react to a card.
There is also no way to buy the time back. An H-4 extension and an H-4 work permit cannot be upgraded at any price, so the filing date is the only lever anyone has.
The document the employee presented for Form I-9, and the date printed on it, is the whole of what your company gets to see. The spouse's case file sits with another employer and another attorney, and asking for it puts you in an awkward position for no gain. The good news is that the printed date is also the only thing that governs your obligation.
That makes the reasonable ask a narrow one.
Nine columns hold everything above. Keep them per employee rather than per case, and put a named person in the last one rather than a team.
Where this belongs is a written program rather than someone's personal calendar, and building a company immigration policy covers how to put it there. The Form I-9 side sits in our guide to I-9 compliance, and onboarding international employees covers what to capture on day one so the row exists before it matters.
A date passed and nothing was filed. Two separate clocks are running now, and they have different answers.
The first is your obligation under Form I-9, and it is fixed. An employer has to reverify no later than the date employment authorization expires, and cannot keep employing someone who cannot show current authorization. That obligation holds for a sympathetic case, a pending filing and a ten-year employee alike.
The second is the employee's underlying status, which may well still be valid. A lapsed work permit and a lapsed status are different problems with different fixes, and which one you have decides whether this is a filing delay or a departure date.
Work them in this order.
The structural fix, where the role supports it, is sponsoring the employee in their own right. An H-4 spouse doing specialty occupation work may qualify for H-1B on their own, which means a March cap registration and everything that follows it. A dependent spouse with the right record may fit another classification entirely, including O-1.
Either route turns a date you cannot see into a date you file. Both take lead time measured in months, and the H-1B route takes a lottery on top. This belongs in a quiet quarter rather than in the week a card expires.
Our guide to how to sponsor a foreign worker covers what the company takes on. E-Verify for employers covers the enrollment that several of these routes assume.
Derivative status is the exposure that never appears on your own filing calendar. No petition of yours expires, no receipt notice arrives in your inbox, and the employee often has not heard that the rules changed under them either. Finding out late costs a working employee for months. Finding out early costs a column in a spreadsheet and one conversation a year.
Tukki gives HR one view of every work authorization date across the workforce, including the ones that come from someone else's petition. The renewal window and the reverification date are already calculated.
Immigration attorneys handle the filings and the judgment calls, including when to extend the dependents alongside the principal so the family files once. Sponsored employees and their families get a direct line to those attorneys, so the questions that need a case file behind them go to someone holding it.
WE CAN HELP
Need more clarity?
Find quick answers to frequent visa questions from our legal experts
How much does an EB-1A visa cost?
The EB-1A filing fees include $715 for the I-140 petition, plus an optional premium processing fee of $2,965.
There's also an Asylum Program Fee, which depends on your filing type: $600 for regular petitioners, $0 for nonprofits, and $300 for small employers or self-petitioners.
If you file for Adjustment of Status (I-485), that's an additional $1,440.
Attorney fees vary based on case complexity. For a full breakdown, see our EB-1A cost guide or get a personalized estimate with the pricing tool.
Does a PERM audit mean my case is denied?
No. A PERM audit is a request for documentation from the Department of Labor, not a denial. The employer submits the recruitment file it was already required to keep, and the case continues toward certification once the response is reviewed.
Is the O-1A visa cost different from the O-1B visa cost?
No. The O-1A and O-1B are filed on the same Form I-129 and carry the same USCIS fees, so the government cost is identical. The main practical difference is that O-1B arts cases require an advisory opinion from a labor union or peer group, which can add a small coordination step to the attorney work but doesn't change the filing fees.
What should we do if we find out an H-1B employee has been working from a different state?
Pin down the address and the first working date, test that address against the area of intended employment on the certified LCA, and correct forward. If it's the same area, provide notice now and document the gap. If it's a different area, choose quickly between preparing the new LCA and amended petition or returning the employee to a covered location while it's prepared.
Check whether the new area carries a higher prevailing wage.
Can an employee keep working while the extension is pending?
Yes, for up to 240 days past the expiration of the authorized stay, where the extension was timely filed for the same employment with the same employer. That authorization ends on notice of a denial.
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