MAJOR SETTLEMENT CHANGES HOW USCIS ADJUDICATES H-4 & L-2 WORK PERMITS FOR NONIMMIGRANT SPOUSES
by Rabindra Singh
The American Immigration Lawyers Association (AILA) and its litigation partners reached a 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.
The settlement agreement will also 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.
MAJOR TAKEAWAYS FROM THE SETTLEMENT AGREEMENT
Automatic Renewals of Employment Authorization for applicants with valid H-4 status
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 would 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.
Employment Authorization Incident to Valid L-2 status and Automatic Extensions of EADs:
Within the next 120 days, USCIS will issue policy guidance stating that L-2 spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94, 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.
Certain L-2 nonimmigrant spouses who timely file their I-765 EAD renewal applications and continue to have L-2 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(18)-based EADs. The auto-extension would terminate the earlier of: the end date of the individual’s L-2 status, the approval or denial of the I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD.
Should you have any questions about this recent development, please contact HSD Immigration at (312) 291-1234.