Immigration Alert: Court Settlement Changes Work Permit Rules for H-4 and L-2 Spouses

Due to a settlement agreement in a federal lawsuit, Shergill, et al. v. Mayorkas, U.S. Citizenship & Immigration Services (USCIS) must make significant changes in handling applications for Employment Authorization Documents (EADs) for H-4 and L-2 spouses. These applications are presently subject to extremely delayed government processing times, and the settlement agreement provides significant relief.

H-4 Spouses: Otherwise eligible H-4 spouses who timely file an application for an EAD renewal will get an automatic extension of their work authorization. The extension will last until either:

• The expiration of their lawful period of admission to the U.S. (i.e. their Form I-94 end-date);
• The approval or denial of the EAD application, or;
• After 180 days.

L-2 Spouses: Certain L-2 spouses will be eligible for employment authorization “incident to status,” meaning they will no longer require an EAD to lawfully work in the U.S. Other L-2 spouses will require a valid EAD, at least for an initial period.

• The Form I-94 of an L-2 spouse will now be an acceptable “List C” document, for I-9 Employment Verification purposes, which prospective employers may accept instead of an EAD for employment
• Soon, the U.S. Department of Homeland Security will begin to issue Forms I-94 to L-2 spouses with a special annotation, to indicate the spousal relationship with the principal L-1 nonimmigrant. The Form I-94 must be annotated in this manner, for an L-2 spouse to benefit from the new employment authorization rule
• An L-2 spouse who holds a Form I-94 without the spousal annotation must hold a valid EAD to lawfully work in the U.S., until they obtain an annotated Form I-94 through an approved Extension of Status process in the U.S., or upon readmission to the country after international travel
• L-2 spouses who apply for an EAD renewal will be eligible of the same automatic EAD extension as H-4 spouses, as described above.

USCIS has indicated that it will soon issue detailed guidance, regarding these new employment authorization rules. Pending this, however, the recent settlement agreement should be seen as a major victory for nonimmigrant families who have been limited to a single income, due to outrageously lengthy government EAD processing times for H-4 and L-2 spouses. Presently, there is separate litigation pending in federal court that challenges similar EAD processing delays for E-1/E-2 spouses, and Adjustment of Status applicants.

We are continuing to monitor this situation closely. Please contact me or another member of our Immigration Practice Team if you have any questions, or would otherwise like to discuss.