BREAKING: Biden Administration Settles Class-Action Lawsuit Allowing L-2 and H-4 Spouses to Work Incident to Status

In this blog post we share amazing news with our readers regarding the settlement of a recent class-action lawsuit filed against the U.S. Department of Homeland Security. The agreement reached under the settlement will immediately allow for automatic renewals of employment authorization for: L-2 spouses of L-1 nonimmigrants and qualifying H-4 dependent spouses who (a) properly file an application to renew their H-4 based employment authorization document before expiration (b) have an unexpired Form I-94 showing their status as an H-4 nonimmigrant and (c) who will continue to have H-4 status beyond the expiration date of their employment authorization document. Shergill v. Mayorkas, No. 21-1296 (W.D. Wash.)

What does this new settlement mean?

Effective immediately, the Shergill settlement will make it a lot easier for L-2 and H-4 dependent spouses to continue working in the United States without having to apply for a renewal of their employment authorization and without interruptions to their employment. As many are already aware, the processing of I-765 employment authorization applications is currently subject to extreme delays due to the pandemic and burdens on USCIS offices. This new settlement will prevent L-2 and certain H-4 dependent spouses from being stuck in these backlogs. Not to mention L-2 and certain H-4 spouses will no longer have to pay the required $410 filing fee to renew their employment authorization. Following this new settlement, L-2 spouses and certain H-4 spouses will be able to work just by having their valid H-4 and L-2 visas, and they will not need to file any separate applications nor need an employment authorization card (work permit) to work in the United States.

Guidelines for Dependent Spouses under the Settlement Agreement

Under the terms of the Shergill settlement agreement, as it relates to L-2 dependent spouses, USCIS will now interpret 8 CFR § 274a.13(d) to recognize that employment authorization for such spouses is now linked (incident) to their visa status. USCIS will also allow up to 180-day automatic employment authorization extensions when the applicant has already had the H-4 or L-2 status extension granted either through USCIS or through travel.

Automatic Renewals of Employment Authorization for applications that already have valid H-4 status

Pursuant to the settlement agreement, USCIS is now interpreting the law so that H-4 nonimmigrants who have timely filed 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 based on their (c)(26) EAD.
This automatic extension will terminate on the earlier of: the end date of the H-4 status, adjudication of the EAD renewal application, or 180 days from the previous card’s expiration date.

USCIS is working on issuing appropriate guidance to employers and government agencies noting the following:

EAD automatic extensions apply only to H-4 nonimmigrants who continue to have H-4 status after their H-4 EAD expires.
For I-9 purposes, these individuals may present documentation to their employers such as their expired (c)(26) EAD, I-765 extension receipt notice, and unexpired H-4 I-94 showing valid H-4 status.
Employers will need to reverify work authorization upon expiration of the I-94, 180 days from previous card expiration, or upon the adjudication of the I-765 extension, whichever comes earliest.
USCIS will make notations on I-765 receipt notices providing details for the automatic extensions.

Employment Authorization Incident to Valid L-2 status and Automatic Extensions of EADs

Pursuant to the settlement agreement, USCIS will issue policy guidance that states L-2 spouses are employment authorized incident to their visa status.
USCIS will coordinate with Customs and Border Patrol to change the Form I-94 to indicate that the I-94 bearer is an L-2 spouse so that the I-94 can be used for I-9 purposes as a List C document.
In order to bridge the gap while the I-94 documentation gets updated, USCIS will allow for automatic extension for L-2 nonimmigrants who timely file their I-765 EAD renewal applications and continue to have L-2 status beyond the expiration of their L-2 EAD.
This automatic extension will terminate on the earlier of: the end date of the L-2 status, adjudication of the EAD renewal application, or 180 days.

USCIS will issue appropriate guidance to employers and government agencies noting the following:

L-2 EAD automatic extensions apply only to L-2 nonimmigrants who continue to have L-2 status after their L-2 EAD expires.
For I-9 purposes, these individuals may present documentation to their employers such as their expired (a)(18) EAD, I-765 extension receipt notice, and unexpired L-2 I-94.
Employers will need to reverify work authorization upon expiration of the I-94, 180 days, or upon the adjudication of the I-765 extension, whichever comes earliest.

Conclusion

In summary, the new settlement is a victory for L-2 spouses who will now be granted “automatic” employment authorization incident to their visa status (meaning they will no longer have to apply to renew their employment authorization document). Such spouses are allowed to work just by having the status of an L-2 spouse and having a valid I-94 arrival/departure record with the classification as an L-2 spouse.

Further, automatic employment authorization for H-4 spouses is applied more narrowly only to those who (a) properly file an application to renew their H-4 based employment authorization document before expiration (b) have an unexpired Form I-94 showing their status as an H-4 nonimmigrant and (c) who will continue to have H-4 status beyond the expiration date of their employment authorization document.

We congratulate our colleagues at Orbit Law PLLC, Wasden Banias, AILA, Reddy & Neumann P.C. for working tirelessly to help push this settlement agreement forward. The complete details of the settlement agreement can be found in our helpful links section down below.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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