DHS Settlement Provides Relief from Employment Authorization Delays for H-4 and L-2 Spouses

As part of its settlement in Sherquill, et al. v. Mayorkas, the Department of Homeland Security (“DHS”) is implementing structural changes to its policies regarding work authorization for the spouses of H-1B and L-1 nonimmigrant visa holders who hold H-4 or L-2 status. These policy changes will provide significant relief from the long delays in the processing of applications for employment authorization by the United States Citizenship and Immigration Services (USCIS).

Changes for L-2 Spouses:

L-2 Spouses will be recognized as automatically work authorized “incident to status” which means that they do not have to apply for work authorization (e.g. Employment Authorization Document (“EAD”) card) prior to working in the United States. Previously, an L-2 Spouse would need to supply their employer with a DHS-issued work authorization document (“EAD”) to satisfy the Employment Eligibility Verification requirement (“Form I-9”). This would result in a delay for an uncertain period of time which could not only result in a longer wait for the L-2 Spouse to be able to work, but also potential loss of job offers due to L-2 Spouse’s inability to predict when they might be receive their EAD and be able to start working.

As a result of this policy change, L-2 Spouses will be able to supply an unexpired I-94 record endorsed with “L-2 Spouse” and other acceptable I-9 documents to satisfy the Form I-9 requirements. The settlement agreement notes that until the I-94 record is able to be updated, which is supposed to occur within the next four months, L-2 Spouses do not yet have the appropriate documentation to satisfy I-9 requirements without an EAD. DHS has not yet provided guidance regarding how the I-94 records for existing L-2 Spouses will be modified to account for the “L-2 Spouse” endorsement. For L-2 Spouses that already have an EAD bearing a Category ((a)(18)) endorsement, the settlement agreement provides that L-2 Spouses who timely file their I-765 EAD renewal applications and continue to have L-2 status beyond the expiration date of their EAD qualify for the automatic extension of their L-2 ((a)(18))-based employment authorization and EADs. Such auto-extensions terminate the earlier of: the end date of the individual’s L-2 status as noted on Form I-94, the approval or denial of the Form I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD. This provision may be used for newly hired employees, as well as for reverifications.

Changes for H-4 Spouses:

DHS has reversed its policy which prohibited H-4 Spouses from benefiting from an automatic 180-day extension of their existing EAD while their timely filed application for an extension is pending. Please note that only certain H-4 Spouses are eligible for this benefit. Specifically, H-4 Spouses who timely file 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 of their H-4 ((c)(26))-based employment authorization and EADs. Such auto-extensions terminate the earlier of: the end date of the individual’s H-4 status as noted on Form I-94, the approval or denial of the Form I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD. This provision may be used for newly hired employees, as well as for reverifications.

We expect that USCIS will supply additional guidance shortly and will keep you updated.