USCIS Agrees to Improve Work Authorization Process (EAD) for H-4 and L-2 Spouses

In a legal settlement effective as of November 10, 2021, U.S. Citizenship and Immigration Services (USCIS) has agreed to change its policies regarding L-2 and H-4 employment authorization document (EAD) applications. USCIS was challenged in a lawsuit (Shergill et al, v Mayorkas, 21-cv-1296-RSM) as a result of long-delayed EAD applications for certain nonimmigrant spouses. Under the settlement, USCIS has agreed to allow continued work authorization for certain H-4 EAD applicants based on a pending application. USCIS also has agreed to allow work authorization for L-2 spouses without requiring an actual EAD work permit. There are notable limitations, however, and detailed implementation guidelines and I-9 compliance instructions are expected over the coming months.

May 2022 Update:  the auto-extension term has been temporarily extended from 180 to 540 days until October 27, 2023 (USCIS link).

January 2023 Update:   H-4/EAD applications are now to be bundled and approved concurrently with an H-1B petition when filed together (link). 

April 2024 Update:  the auto-extension term has been extended to 540 days again (link).

H-4 Spouses – Settlement Terms and Changes

According to the settlement, USCIS will allow automatic work authorization extension for up to 180 days past the EAD card expiration for standalone pending H-4 EAD applicants which must (1) have a timely filed renewal and (2) continue to have H-4 status (I-94 card) beyond their current EAD expiration.

The length of the auto-extension will be limited to the earlier of the following: (a) the end of the H-4 status, as determined by I-94 record/card, (b) the approval or denial of the EAD application; OR (c) 180 days from the current EAD expiration date.

It is very important to note a major distinction between this new H-4 EAD continued work authorization rule and the broader pending EAD 180-day work authorization rule from 2017. As noted above, the new H-4 EAD pending renewal work authorization is much more limited in scope and validity. It only applies to H-4 spouses who have an existing EAD, who file a timely H-4 EAD extension, AND, very importantly, who have I-94 card already granted for some additional period beyond the existing H-4 EAD card validity term (and not just a pending H-4 status extension application). The new change would NOT directly benefit concurrent H-4 status and H-4 EAD applicants because the automatic work authorization rule requires the underlying status (I-94 record) to be granted and not just pending. But there may be solutions and options.

L-2 Spouses – Settlement Terms and Changes

Under current USCIS policy, L-2 spouses have been eligible to apply for EAD immediately upon being granted L-2 status but employment was not authorized until the EAD card was approved. Under the Shergill settlement, USCIS is changing its policy by allowing L-2 spouses to work without the need for an EAD, with some limitations.

Specifically, L-2 spouses would be deemed to have work-authorization based solely on their L-2 status, which can be demonstrated by a valid I-94 specifying that the L-2 is the spouse of an L-1 nonimmigrant. This I-94 card would be used as a List C document for Form I-9 purposes as long as it identifies the bearer as an L-2 spouse. DHS will change the process and indicate whether an L-2 holder is a spouse (as opposed to an L-2 child) over the coming months. L-2 spouses who hold an I-94 that does not indicate their spousal status may need an EAD in order to work, until they receive an I-94 with an L-2 spouse annotation (by doing L-2 extension or a new I-94 issued at the port of entry upon arrival into the U.S.).

Important Note: until DHS amends the process and starts issuing I-94 cards with L-2 spouse annotation, and until such I-94 card is granted to an L-2 spouse, they would still need to have an EAD to be authorized to work.

Additionally, the settlement includes L-2 EAD automatic work authorization terms which are parallel to H-4s: USCIS will allow automatic work authorization extension for up to 180 days past the EAD card expiration for standalone pending L-2 EAD applicants which must (1) have a timely filed renewal and (2) continue to have L-2 status (I-94 card) beyond their current EAD expiration. Similar to the H-4 provisions, the length of the auto-extension will be limited to the earlier of the following: (a) the end of the L-2 status, as determined by I-94 record/card, (b) the approval or denial of the EAD application; OR (c) 180 days from the current EAD expiration date.

Strategies for H-4 EAD Renewals

The H-4 EAD auto-renewal terms do not apply benefit for concurrently-filed H-4 extension and H-4 EAD applications because the H-4 EAD auto renewal terms require an I-94 record which must be either already granted by virtue of H-4 status extension application or by entering the U.S. on H-4 status. But the new rules create new options and strategies for obtaining H-4 EAD work authorization especially in light of the current 8-12 (or more as of the time of this article) months processing times for some H-4 EADs.

The pre-Shergill settlement approach generally was to try file the H-1B premium processing, H-4 extension and H-4 EAD applications concurrently and then, once the H-1B is approved, seek to expedite the pending concurrent H-4 and H-4 EAD applications. Given the difficulties and the very low success rate in expediting H-4/EADs, this approach resulted in many H-4 EAD spouses being unable to continue to work while waiting for the H-4/EAD renewals.

Post-Shergill, and in order to claim the benefits of the automatic H-4 EAD renewal work authorization terms, it may be best to file the H-1B extension with premium processing and then, once approved, the H-4 spouse would leave the US, travel to their home country (or Mexico/Canada, perhaps even using the automatic visa revalidation program) and then be admitted in to the US on H-4 status for a term matching the newly-extended H-1B petition. Afterwards, immediately file the H-4 EAD application based on the new I-94 card. This approach should allow claiming the automatic pending H-4 EAD work authorization (assuming all conditions are met).

Applicants who have concurrent pending H-4 and H-4 EAD applications may still take advantage of this approach although at this time it is unclear what would USCIS do with respect to the pending H-4 status and concurrent H-4 EAD applications if the applicant departs the U.S. while the I-539 application is pending. USCIS has been inconsistent in their recent handling of these cases so we recommend planning carefully and consulting with an attorney to plan carefully this option.

Conclusion/Further USCIS Guidance Anticipated

The Shergill settlement is excellent news for a number of H-4 and L-2 spouses who now have alternatives to avoid or minimize disruption to their employment due to USCIS processing delays. However, as outlined above, there are some notable limitations in the new policies. In the next 120 days USCIS is expected to provide formal policy guidance and implement the changes required by the settlement, including amending the receipt notices and I-94 cards. They are also going to provide guidance to employer for I-9 compliance.

Our office will continue to monitor and report developments on this and related topics. Please do not hesitate to contact us, schedule a phone consultation, or if we can help with an H-4 EAD application filing (request quote here).  Also, please subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.