Major Settlement Changes EAD policies for H-4 and L-2 Spouses
The American Immigration Lawyers Association has announced a settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas. The settlement provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the adjudication of applications for employment authorization.
- L-2 work authorization: Spouses in L-2 status will have automatic work authorization “incident to status”; that is, as long as they hold L-2 status they will not need to apply and wait for an EAD anymore
- H-4 EAD work authorization: Spouses in H-4 status who already have an H-4 EAD, and who file for an EAD extension before their current EAD expires, will receive an automatic extension of work authorization while the EAD extension is pending adjudication with USCIS.
LAC initial analysis:
- USCIS will interpret 8 CFR § 274a.13(d) such that certain H-4 nonimmigrants who timely file their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(26)-based employment authorization and EADs. Such auto-extensions terminate the earlier of: the end date of the individual’s H-4 status as noted on Form I-94, the approval or denial of the Form I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD.
- In light of the above there are some questions as to the application of this provision for individuals who timely and concurrently extend H-4 and H-4 EADs if the underlying H-4 I-94 expires. To provide realistic relief from wait times the provisions may require the H-4 spouse to exit and re-enter the U.S. close to the end of the H-4 status/EAD validity, obtain an H-4 visa if required, receive an extended H-4 validity period based on the principal’s H-1B approval, file the I-765 EAD extension, then benefit from the auto extension of work authorization.
- Effective dates: Although there are dates by which DHS must issue amended policy guidance the changes appear to take effect immediately, as of the date that the agreement is signed by all parties. However, LAC recommends caution in reliance on these changes until additional information is issued by DHS, as the settlement agreement leaves open the possibility of additional regulatory revisions.
We expect additional guidance on implementation to be forthcoming from the agencies and will send updates as more information becomes available.
AILA PRESS RELEASE: Major Settlement Changes How USCIS Adjudicates Work Permits for Nonimmigrant Spouses
AILA Doc. No. 21111002 | Dated November 10, 2021
FOR IMMEDIATE RELEASE
Wednesday, November 10, 2021
Washington, DC – The American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown, celebrate the historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.
Jesse Bless, AILA Director of Federal Litigation stated, “Today marks a historic change for L-2 spouses who will now enjoy work authorization incident to status. 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, through our litigation efforts with Wasden Banias and Steven Brown. It is gratifying that the administration saw that settling the litigation for nonimmigrant spouses was something that should be done, and done quickly.”
Jon Wasden stated, “After years of outreach to the agency, it became clear that litigation was unfortunately necessary. Despite the plain statutory language, USCIS failed to grant employment authorization incident to status for L-2s. The other issue relates to H-4s whose work permits expire prior to their H-4 status; this is a group that always met the regulatory test for automatic extension of EADs, but the agency previously prohibited them from that benefit and forced them to wait for reauthorization. People were suffering. They were losing their high-paying jobs for absolutely no legitimate reason causing harm to them and U.S. businesses. So, while I’m glad the agency finally followed the law, it is frankly frustrating that an easily fixable issue took this long to address.”
This update was prepared by Fausta M. Albi, Partner, Larrabee Albi Coker LLP.