Written by David S. Rugendorf
On November 10, 2021, the Department of Homeland Security (DHS), which the US Citizenship and Immigration Services (USCIS) is a part of, signed a settlement agreement in the case of Shergill et al. v. Mayorkas, where it agreed to provide relief to L-2 and H-4 spousal work authorization (EAD) applicants.
For H-4s, the spouses of H-1B workers eligible for work authorization because the H-1B worker is the beneficiary of an approved I-140 immigrant petition for which the green card quota backlog is not current, the USCIS will change its I-765 (EAD work authorization application) receipt notice to show an automatic 180 days extension of work authorization based on a timely filed EAD extension request. To be valid, the H-4 beneficiary must possess a valid, but expired EAD in the H-4 category, plus a copy of the receipt notice for a timely filed EAD extension, as well as an I-94 demonstrating continuing, valid H-4 status. This combination of documentation will be valid for I-9 purposes. The automatic work authorization will terminate when the EAD extension is approved or denied, the 180 period elapses, or the person otherwise falls out of H-4 status, whichever is earliest. USCIS will amend its receipt notice within 120 days of the agreement to reflect this change in policy.
For L-2s, the spouses of L-1 intracompany transferee workers, the USCIS will now regard such individuals as authorized to work incident to status, so long as they possess the new Form I-94 which USCIS is now developing. In other words, EADs will no longer be required for L-2 spouses with the new Form I-94. US Customs and Border Protection (CBP) will amend its current Form I-94 within 120 days of the agreement to reflect this change in policy. Until the new Form I-94 is issued, L-2 spouses will not have work authorization based solely on their current L-2 status. However, L-2 spouses with timely filed and pending EAD applications will receive an automatic 180 days extension of work authorization. This authorization will terminate on the earlier of the end date of the applicant’s L-2 status, the expiration of the 180 day period, or the approval/denial of the EAD application. For I-9 purposes, those claiming work authorization under the 180 days automatic extension provisions may present proof of valid, continuing L-2 status, an expired EAD card and proof of a timely filed I-765 EAD extension request based on L-2 status.
This agreement pertains to H-4 and L-2 spouses only. It does not include spouses of E-2 employee beneficiaries. We hope the upcoming USCIS guidance will clarify if the new policy grants work authorization to currently pending H-4 and L-2 EAD applicants, or if the policy will apply only to future applicants. We also hope the USCIS guidance will address whether the automatic extension policy applies only to persons without a pending I-539 extension of status.
We are providing this summary as a courtesy to our clients, friends and the general public. The USCIS will issue more definitive guidelines on this new policy, which should not differ from the settlement agreement summarized here, but will control policies and procedures related to the policy discussed in this bulletin.