U.S. Citizenship and Immigration Services (USCIS) has agreed to change its policies concerning H-4 and L-2 employment authorization document (EAD) applications, according to a settlement agreement in a lawsuit that challenged the lengthy processing delays of H-4 and L-2 EAD applications. Today, the parties came to a settlement in which USCIS agrees that:
- Certain H-4 nonimmigrants with EAD renewal applications will be eligible for an automatic extension of their work authorization; and
- Certain L-2 spouses will benefit from automatic work authorization incident to their L-2 status without the need for an EAD, with some limitations. Auto-extension may also apply to L-2 EAD renewals.
The case is Shergill et al, v Mayorkas (21-cv-1296-RSM).
Detailed USCIS guidance is forthcoming and is expected to clarify how USCIS will implement the new policies and address Form I-9 employment eligibility verification for affected foreign nationals. While the agreement does not address EADs for the spouses of other employment-based nonimmigrants, there is separate litigation pending in federal court that challenges delays for E spousal EADs and for adjustment of status-based EAD applications.
How the settlement affects H-4 spouses
According to the Shergill settlement agreement, USCIS will agree to permit standalone H-4 EAD applications to benefit from some form of automatic extension. Under the new policy, H-4 nonimmigrants who: (1) timely file EAD renewals; and (2) continue to have H-4 status beyond their current EAD expiration, will qualify for an automatic extension of up to 180 days. The length of the auto-extension will be the earlier of the following:
- The end of the H-4 status, as determined by their I-94 record;
- The approval or denial of the EAD application; or
- 180 days from the current EAD expiration date.
How the settlement affects L-2 spouses
Under prevailing law and policy, L-2 nonimmigrants have been eligible to apply for EADs immediately upon being accorded L-2 status, but could not begin work until the EAD was approved. In the Shergill settlement, USCIS has agreed to change its interpretation of current regulations by permitting L-2 nonimmigrants to work lawfully without the need for an EAD, with some limitations.
The agency has agreed that L-2 nonimmigrants should be deemed to be work-authorized incident to their status, which can be established by a valid I-94 specifying that the L-2 is the spouse of an L-1 nonimmigrant. This I-94 would be used as a List C document for Form I-9 purposes as long as it identifies the bearer as an L-2 spouse. The Department of Homeland Security does not currently issue L-2 I-94s indicating that the holder is a spouse (as opposed to a child) of an L-1, but will begin to do so as a result of the Shergill settlement. L-2 spouses who hold an I-94 that does not indicate their spousal status may continue to need an EAD in order to work, until they receive an I-94 with a spouse annotation (such as through an approved extension or a new I-94 issued after reentry to the United States).
The agreement also provides auto-extension policies for L-2s who still need to renew an EAD. The L-2 auto-extension policies mirror the H-4 policies in that the applicant must have filed a timely L-2 EAD renewal application and continue to have L-2 status beyond their current EAD expiration in order to qualify. The auto-extension duration is also the same as for the H-4 version.
What it means for employers and foreign nationals
The Shergill settlement is good news for some H-4 and L-2 spouses who could see relief from disruptions to their employment due to USCIS processing delays. However, there are some limitations in the new policies. Based on the terms of the settlement, H-4 nonimmigrants who file EAD renewals concurrently with an I-539 extension may receive only a brief auto-extension, just to the end of their current I-94 date. L-2s who do not hold an I-94 specifically noting their spousal status will still need an EAD to work until they are issued a new L-2 spousal I-94.