Key Points
- USCIS will expand eligibility for employment authorization for L-2 and certain H-4 spouses
- A settlement was reached in Shergill et al. v. Mayorkas to benefit H-4 and L-2 spouses
- The outcome of the settlement differs for H-4 and L-2 EAD applicants
- The settlement was executed on November 10, 2021
- By March 10, 2022, USCIS and CBP must update form I-94 for L-2 spouses to indicate that it serves as a List C document for I-9 purposes
- H-4 holders with a current I-94 are eligible for an extension of their employment authorization for up to 180 days beyond the expiration of their current EAD, while their application for an extension of the EAD is pending
Overview
Following a recent settlement, the US Citizenship and Immigration Services (USCIS) will expand eligibility for employment authorization for L-2 spouses and certain H-4 spouses.
A settlement was reached in Shergill et al. v. Mayorkas that may benefit H-4 and L-2 spouses who seek employment authorization in the US.
What are the Changes?
The settlement was executed on November 10, 2021, but employers may need to wait for USCIS guidance on how these changes will be reflected in I-9 employment eligibility directions.
L-2 EAD Beneficiaries
- No later than March 10, 2022, USCIS and Customs and Border Protection (CBP) must update the I-94 form for L-2 spouses to demonstrate that it serves as a List C document for I-9 purposes. L-2 spouses will then be eligible to work by presenting a valid I-94 in conjunction with a List B document for I-9 verification. The expiration of the L-2 work authorization will be linked to the expiry on the I-94. This new procedure will replace the requirement to hold a valid Employment Authorization Document (EAD).
- For existing L-2 beneficiaries in the US who are currently holding an expired EAD but have evidence of a timely filed extension and an unexpired I-94 showing L-2 status, an extension of up to 180 days beyond the expiration date of the current EAD will be granted. If the applicant’s current L-2 status expires less than 180 days after the expiration of the current EAD, then the extension of employment authorization will expire on the same date as the L-2 status. If the application for the new EAD is denied, employment authorization will cease as of the date of the denial.
- Previously, USCIS policy did not grant any automatic employment authorization extension to L-2 EAD holders while their Employment Authorization Document (EAD) application was pending, and L-2 holders were unable to work without an approved EAD.
H-4 EAD Beneficiaries
- H-4 holders will be eligible for an extension of their employment authorization for up to 180 days beyond the expiration of their current EAD, while their application for an extension of the EAD is pending if they have an unexpired I-94. If the applicant’s current H-4 status expires less than 180 days after the expiration of the current EAD, then the extension of employment authorization will expire on the same date as the LH-4 status. If the application for the new EAD is denied, employment authorization will cease as of the date of the denial.
- Previously, USCIS policy did not grant any automatic employment authorization extension to H-4 EAD holders while their Employment Authorization Document (EAD) application was pending.
- Within 120 days of the Effective Date of this settlement (by March 10, 2022), USCIS will amend the receipt notice currently issued to H-4 applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with an expired EAD. The Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.
USCIS will update I-9 Employment Eligibility directions to account for the above changes.
Although the settlement is a significant reversal of previous USCIS policy and should benefit affected spouses, H-4 and L-2 dependents may still face some challenges given delayed processing times. Without premium processing service for dependent applications and severe processing backlogs at USCIS, processing times will continue to be excessive. Please reach out to your CIP attorneys regarding specific strategies in your case, including consular activation of the dependent status.
Looking Ahead
USCIS will issue new reflecting these updated policies. Further information may become available as these new policies take effect. Please see our related post for work authorization changes for E dependents.
