Person completing paperwork
( Pattanaphong Khuankaew)

Historic settlement to change USCIS policy for H-4 and L-2 spousal work permits

The Department of Homeland Security (DHS) has reached a settlement in a class action lawsuit that will significantly impact the spouses of two specific nonimmigrant visa classifications who have suffered extensive delays in Employment Authorization Document (EAD) processing times.

The agreement in Shergill, et al. v. Mayorkas will result in United States Citizenship and Immigration Services (USCIS) automatically extending work authorization for the spouses of H-1B visa holders (H-4 visa classification) under certain conditions. Additionally, L-2 visa holders will eventually be authorized to work incident to their status, meaning they will soon no longer have to apply for separate work authorization.

USCIS has not yet released policy guidance nor the effective date of these policies, and it is not yet clear how they will be implemented nor how pending applications will be treated. The attorneys at Garfinkel Immigration Law Firm are closely monitoring and awaiting guidance from USCIS on implementation of these new policies.

However, in practical terms, the settlement means that in the future, L-2 visa holders will automatically be eligible to work in the United States upon effective L-2 status pursuant to their Form I-94. Concurrently, individuals on H-4 status will receive an automatic extension of their Employment Authorization Document (EAD) for up to 180 days if the EAD renewal application was timely filed before the expiration of their current H-4 EAD. Per the terms of the settlement, the automatic-extension will expire on the earlier of:

  • The individual’s H-4 status expiration as noted on Form I-94;
  • The approval or denial of the EAD renewal application; or
  • 180 days from the expiration date on the existing EAD.

Per the terms of the settlement, USCIS will “change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes.” In the meantime, while waiting for USCIS to make that change, L-2 spouses with pending renewal EAD applications can “receive automatic extensions of their EADs” by presenting employers with:

  • Their expired EAD indicating Category A18;
  • Form I-797 Receipt Notice from the EAD renewal application showing “Class requested” as “(a)(18)” and receipt date before the EAD expired; and
  • An unexpired Form I-94 record showing valid L-2 status.

The settlement should help thousands of individuals whose case adjudications have been delayed because of backlogs at USCIS, which stem from the COVID-19 pandemic and other factors.

“Today marks a historic change for L-2 spouses who will now enjoy work authorization incident to status,” American Immigration Lawyers Association Director of Federal Litigation Jesse Bless said in a statement about the settlement.

The statement continued: “AILA’s membership has long advocated for the correct statutory interpretation and we’re delighted to have reached this agreement, which includes relief for H-4 spouses. … It is gratifying that the administration saw that settling the litigation for nonimmigrant spouses was something that should be done and done quickly.”

Earlier this year, USCIS also suspended a Trump-era policy that required biometric screenings for H-4 and L-2 visa holders in an effort to reduce backlogs.

The attorneys at Garfinkel Immigration continue to monitor USCIS updates and new policy guidance regarding these changes. Please contact the attorneys at Garfinkel Immigration Law Firm with any questions and/or to receive more information as updates evolve.

As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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