Following months of crisis-level processing times for Form I-765 Applications for Employment Authorization on behalf of dependent spouses in L-2¹ and H-4² nonimmigrant visa status, the U.S. Citizenship and Immigration Service (USCIS) has entered into a settlement agreement in Shergill v. Mayorkas, which expands opportunities for certain L-2 and H-4 visa holders to maintain work authorization while awaiting USCIS adjudication. Under previously existing procedures, H-4 and L-2 dependent spouses were granted work authorization only when in possession of a valid, unexpired employment authorization document (EAD). As a result, H-4 and L-2 workers have been severely impacted by lapses in work authorization caused by extensive processing delays, as the applicant’s existing EAD often expires months before USCIS is able to approve the pending renewal application. Petitioners filed the lawsuit arguing they lost work authorization due to the USCIS’ delay in approving renewal applications.

The settlement agreement expands eligibility for H-4 and L-2 work authorization as follows:

• H-4 and L-2 spouses seeking to renew their EAD cards will be granted automatic renewal of their work authorization so long as (1) their nonimmigrant visa status remains valid as shown on their I-94 travel record, and (2) the EAD renewal application is filed with USCIS before the expiration of the previously approved EAD card. This automatic extension will be valid up to 180 days beyond the expiration of the previously approved EAD, until the expiration of the applicant’s I-94 status, or until USCIS completes adjudication of the pending renewal application, whichever comes sooner.

• L-2 spouses will be granted work authorization incident to status, meaning they will not require a separate EAD application, only when issued an I-94 travel record noting their status as an L-2 spouse. In the settlement agreement, USCIS and U.S. Customs and Border Protection have committed to implementing these I-94 annotations within 120 days of the final settlement agreement.  Further details on the application of this new I-94 annotation will be provided in a future USCIS policy guidance.

• H-4 spouses who are eligible for work authorization but are either applying for their first-ever EAD card or who submit an application for a new EAD card after the expiration of their prior work authorization will continue to be ineligible for work authorization until after the application is approved and the EAD card is issued.

These changes will reduce uncertainty for U.S. employers seeking to hire and retain workers in L-2 and H-4 spouses as it reduces the risk that their employees will face unavoidable lapses in work authorization, requiring immediate cessation of all work activities. What is not yet clear is exactly what employers can expect during the implementation of these new rules in order to maintain compliance with the I-9 Employment Eligibility Verification process required for all individuals working in the United States. At this time, USCIS is preparing formal guidance on the application of these changes, including guidance for employers seeking to complete I-9 certification on behalf of workers granted work authorization as a result of the settlement agreement. 

Littler will continue to monitor this issue and provide updates on significant developments.