The U.S. Department of Homeland Security has agreed to make policy changes that will benefit L-2 spouses and certain H-4 nonimmigrants filing renewal applications for Employment Authorization Document cards.
When the changes take effect, nonimmigrant L-2 spouses of nonimmigrant L-1 intra-company transferees will be able to work “as an incident of status” without the need to apply for EAD cards, and certain H-4 spouses of H-1B workers (and for an interim period, L-2 spouses) will be allowed to file “standalone EAD applications” (those not filed with an application to extend their status). These standalone renewal applications are to be automatically extended for up to 180 days.
Until now, the U.S. Citizenship and Immigration Services has allowed timely filed EAD card renewal applications to be automatically extended for up to 180 days in certain immigrant and nonimmigrant categories, but not for H-4 spouses of H-1Bs or L-2 spouses of L-1 intracompany transferees. This policy, coupled with the long delays in processing EAD card renewal applications caused job losses, disruptions, and economic harm to H-4 and L-2 spouses and economic harm to their employers.
The changes in policy are coming about as a result of a settlement in the case of Shergill v. Mayorkas, a lawsuit that was filed in federal court in the Western District of Washington (Seattle). Under the terms of the settlement, the changes were to take effect 120 days from November 10, the date that the settlement was filed with the court. However, on Friday, the USCIS issued new policy guidance that also applies to E visas (for spouses of treaty traders (E-1) or treaty investors (E-2), or citizens of Australia (E-3)) and will do the following, effective immediately:
- Grant automatic extensions of EAD status to certain L, E, and H-4 dependent spouses if they filed for extensions before their EADs expired, and if they have unexpired Forms I-94 showing their status.
- Allow these L, E, and H-4 spouses to present a combination of the following documents to their employers for I-9 purposes:
- Form I-94 showing unexpired nonimmigrant status,
- A timely filed Form I-797C showing an EAD renewal application Form I-765 stating “Class requested” as either (a)(17), (a)(18), or (c)(26) as applicable, and
- A facially expired EAD card issued under one of the categories listed above.
- “Provides that E and L dependent spouses are employment authorized incident to their status” and therefore may, but are not required to, file I-765 requests for employment authorization. (Form I-94 will be revised for E and L spouses, but until that time, the Form I-94 alone cannot be used as a “List C” document for I-9 purposes.)
The lawsuit
The Plaintiffs in Shergill claimed that L-2 spouse visa holders should be automatically granted work authorizations – without having to apply for EAD cards – once they arrive in the United States. The language of the Immigration and Nationality Act provides some support for the Plaintiffs’ position.
The Plaintiffs also sought automatic extensions of up to 180 days for standalone EAD petitions filed by the H-4 and L-2 spouses.
Terms of the settlement
Under the Settlement Agreement, the government has agreed to do the following by the end of the 120-day period (as noted above, some of these changes have already been put into place):
- The USCIS will issue policy guidance stating that L-2 spouses are authorized incident to status.
- The USCIS, in cooperation with Customs and Border Protection, will amend Form I-94 to say “that the bearer is an L-2 spouse so that [Form I-94] can be used as a List C document for Form I-9 purposes.”
- The USCIS will interpret its regulations to allow H-4 spouses to qualify for automatic extensions of their EAD cards for up to 180 days if the H-4 spouse
- Files a renewal application before the current EAD card expires,
- Has an unexpired Form I-94 showing his or her status as an H-4 nonimmigrant, and
- Can show that his or her status as an H-4 nonimmigrant will continue beyond the expiration date of the current EAD.
- The USCIS will change the I-797 receipt notice to make clear that H-4 spouses covered by the Settlement Agreement are eligible for automatic extensions of their EAD cards for up to 180 days consistent with the above.
- The USCIS will issue appropriate guidance to employers and benefit-granting agencies.
Limitations, unanswered questions
Although L-2 spouses, once the new policy changes take effect, will gain automatic employment authorization as an incident of their status, the benefits for H-4 spouses are more limited. For example, an H-4 spouse (or an L-2 spouse during the interim period) who files for an EAD renewal along with an I-539 extension at most could receive a brief automatic extension of the EAD card until the expiration of the current period of stay. In addition, we will need further clarification from the USCIS as to whether the settlement applies retroactively to pending H-4 and L-2 EAD renewal applications that meet the settlement criteria for benefits.
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