Shergill et al, v Mayorkas (21-cv-1296-RSM), a class action lawsuit, was filed by The American Immigration Lawyers Association (“AILA”) and its litigation partners Wasden Banias and Steven Brown, to address the extensive delays at United States Citizenship and Immigration Services (“USCIS”) in processing Employment Authorization Document (“EAD”) applications for dependent spouses of H-1B and L nonimmigrant visa holders. On November 10, 2021, AILA announced a settlement had been reached with the U.S. Department of Homeland Security (“DHS”) in the Shergill case, under which USCIS agreed to allow continued work authorization for certain H-4 and L-2 EAD applicants whose applications remained pending with USCIS. USCIS reversed its policy that prevented H-4 spouses “from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications.” USCIS also agreed to implement policy guidance within 120 days to provide work authorization for L-2 spouses without requiring an EAD card.
Days following AILA’s announcement, USCIS issued updated policy guidance outlining its new policies regarding employment authorization document (“EAD”) applications by L-2, H-4, and E visa dependent spouses. Immediately effective under the terms of settlement, USCIS will provide:
Continued work authorization, in the form of automatic extensions of EAD validity to E, H-4, and L dependent spouses who have filed a timely application to extend an EAD before it expires and have an unexpired Form I-94 entry record for E, H-4, or L nonimmigrant status.
Eligibility for E, H-4, and L dependent spouses to receive an automatic extension through the earlier of: (1) the expiration date of their valid E/H/L Form I-94; (2) the approval or denial of their EAD renewal application; or (3) 180 days from the expiration of their previous EAD.
Acceptability of a document combination which includes an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely-filed EAD renewal application, and most recently expired EAD to be accepted as evidence for the purposes of verifying Employment Eligibility Verification (Form I-9).
Employment authorization to E and L dependent spouses incident to their status, without the need for an EAD, thereby no longer requiring the beneficiaries to request employment authorization by filing Form I-765. However, beneficiaries may continue to file Form I-765 if they choose to receive a physical EAD.
Although USCIS will recognize E and L dependent spouses as work authorized without the need for an EAD as noted above, they must hold a Form I-94 (“I-94”) arrival record specifically annotated to indicate their spousal status. Currently, DHS does not issue I-94s with spousal annotations but is taking immediate steps to modify the current I-94 so that “E and L dependent spouses can be distinguished from E and L dependent children on the face of the document.” Once DHS adopts the revised I-94 indicating that “the bearer is an E or L dependent spouse” it will serve as “acceptable evidence of employment authorization under List C of Form I-9.” However, until an E or L spouse receives the updated I-94, they will be required to have an EAD in order to work.
Note the new policy is not extended to the dependent spouses in E status of the Employees of the Taipei Economic and Cultural Representative Office (“TECRO”) and Taipei Economic and Cultural Offices (“TECO”), or to spouses of Long-Term Investors in the Commonwealth of the Northern Mariana Islands (“E-2 CNMI Investors”) who are also required to apply for employment authorization. Additionally, spouses of E-2 CNMI investors who obtained such status based upon a Foreign Retiree Investment Certificate are not eligible for work authorization.
The policy change is certainly good news for H-4 and L-2 spouses who were previously faced with loss of work authorization as a result of USCIS processing delays.
Update January 24, 2022: Starting on January 25, 2023, USCIS is required to adjudicate L-2, H-4, and H-4 EAD together with I-129 under new Settlement Agreement. The American Immigration Lawyers’ Association (“AILA”) has reached with the Department of Homeland Security (“DHS”) in Edakunni v. Mayorkas which will aid the spouses of many of H-1B and L-1 visa holders. The settlement provides for relief to nonimmigrant L-2 and H-4 visa holders, the spouses to L-1 and H-1B visas respectively, who have endured long delays in processing times leading to delayed employment authorization. “The government and plaintiffs have signed off on a settlement in which USCIS would agree to return to bundling the adjudication of I-539s and I-765s for H-4 and L-2 derivatives along with the underlying I-129 when these forms are filed together”. However, if the forms are filed separately, USCIS will not bundle the adjudication. We congratulate the team from Reddy & Neumann, P.C., along with a team of Jonathan Wasden from Wasden Law and Jesse Bless on behalf of AILA, on this momentous settlement with DHS.
Update March 23, 2022: USCIS is updating its guidance in the USCIS Policy Manual for how L and E spouses may show permission to work in the US given their employment authorization is now incident to status. When they are admitted to the US CBP will admit them with an “S” after their status on the I-94 to indicate that they are spouses authorized to work. The I-94s with “S” designation may be used, along with a foreign passport, by L and E spouses to satisfy employers’ I-9 requirements.
USCIS also issued an alert noting that that E and L spouses, age 21 or over, with unexpired Form I-94s issued by USCIS before January 30, 2022, will be receiving a notice via US mail beginning on or about April 1, 2022. “This notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization.” USCIS urges E and L spouses, who are under the age of 21, or have not received their notice from USCIS by April 30, 2022, to email E-L-married-U21@uscis.dhs.gov to request a notice.
UPDATE FEBRUARY 16, 2022: Effective January 31, 2022, US Customs and Border Protection (“CBP”) began using new Codes of Admission for dependent L and E visa holders. The updated codes provide spouses of E and L visa holders with a new class of admission code upon their entry to the US that designates them as spouses who are authorized to work without applying for an Employment Authorization Document (“EAD”). “L and E spouses should be admitted with an “S” after their status to indicate that they are spouses authorized to work.” The “S” designation informs employers that they are authorized to work for the validity of their I-94s for I-9 purposes.
CBP is not updating the I-94 admission records for the L and E spouses already in the US retroactively. Those without the new “S” designation will still need to apply for EADs to lawfully work in the US. For these individuals to obtain the new I-94 notation authorizing work, they would have to travel outside of the US and return.