by Jennifer Grady, Esq.
November 10, 2021: The historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas (Case No. 21-cv-1296-RSM) provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long-delayed processing times for the processing of applications for employment authorization. The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.
Background
DHS regulations generally provide for automatic extension of EADs and employment authorization for EAD renewal applicants if their EAD renewal application is timely filed and based on the same employment authorization category as shown on the face of the expiring EAD. Yet, until the November 12th policy change, E, L and H-4 spouses were not included on the list of visa categories eligible for an automatic extension. USCIS claims that this was intentional, as the agency believed in 2016 that these categories required adjudication of the underlying application before their EAD renewal could be adjudicated. The concern was that EADs could be extended beyond the validity of the underlying visa. However, by conditioning the expansion to E, L and H-4 EAD renewals under the new policy on proof that the underlying status has already been extended, these concerns are now moot according to USCIS.
How to Prove Visa Extension Work Authorization
The guidance clarifies that employers may accept the following combination of documents as evidence of an automatic extension:
Form I-94, indicating the unexpired nonimmigrant status (H-4, E or L);
Form I-797C, Notice of Action, showing a timely-filed renewal application (timeliness determined by comparing the date of receipt on the Form I-797C with the date of expiration on the expired EAD) stating “Class Requested” as “(a)(17),” “(a)(18),” or “(c)(26)”; and
The facially-expired EAD issued under the same category as the “Class Requested” on the renewal application.
The length of the automatic extension will be the shorter of: (a) the end date on the Form I-94 showing valid status, (b) the approval/denial of the EAD renewal application, or (c) 180 days from the expiration date of the current EAD. Once the EAD renewal application is approved, the employer should complete a Section 3 Reverification on the Form I-9 to reflect the new expiration date of the worker’s employment authorization.
Work Authorization Incident to Status for E and L Spouses
Previously, L and E spouses did not automatically receive a work authorization incident to their L-2 status, despite clear statutory entitlement under Public Laws 107-125 and 107-124. Pursuant to the 2002 Yates Memo, the Service had, instead, mandated that L and E spouse visa holders file applications to change/extend their status and separate applications for an employment authorization on the basis of that status. These inconsistencies have now be resolved and the Yates Memo has been expressly superseded by the new policy. E and L spouses will now enjoy a work authorization incident to their status, obviating the need to apply separately for an EAD, unless they choose to renew the EAD, which remains available but is now optional.
E and L spouses will now be eligible to work as soon as their status is approved (meaning, without needing to file a separate application for a work authorization using Form I-765). However, USCIS has stated that the I-94 indicating valid L or E spouse status will suffice as a List C document for Form I-9 purposes only once the form indicates that the I-94 is for a spouse of the principal immigrant. Since current I-94s do not indicate that the individual is a spouse (as opposed to a dependent child, who is not allowed to work), DHS has indicated it will work with U.S. Customs and Border Protection (“CBP”) to update the I-94 form. In the interim, until the form is revised and the E/L spouse receives an I-94 with the spousal designation (such as when they next apply to extend status), USCIS recommends that individuals continue presenting an EAD as proof of their work authorization and filing to extend their EAD under the previous process.
Next Steps
The new guidance makes it clear that these changes are effective immediately. The news is a welcome relief to employers, as EAD extension applications have been notoriously slow of late, leading to gaps in employment for H-4, E and L spouses. Forcing these employees to be terminated or put on unpaid leave has been incredibly disruptive for businesses and a roadblock to retaining talent. The E and L employment authorization incident to status change will also make it easier to convince foreign employees to agree to relocate to the U.S. In the past, spouses of E and L nonimmigrants would frequently have to stop working to allow the principal immigrant to come to the U.S. Now, the E/L spouses can begin working as soon as they arrive in the U.S. with the appropriate Form I-94, making it easier for the families to plan their life in the U.S.
Commentary
Jesse Bless, AILA Director of Federal Litigation stated, “Today marks a historic change for L-2 spouses who will now enjoy work authorization incident to status. AILA’s membership has long advocated for the correct statutory interpretation and we’re delighted to have reached this agreement, which includes relief for H-4 spouses, through our litigation efforts with Wasden Banias and Steven Brown. It is gratifying that the administration saw that settling the litigation for non-immigrant spouses was something that should be done, and done quickly.”
Jon Wasden stated, “After years of outreach to the agency, it became clear that litigation was unfortunately necessary. Despite the plain statutory language, USCIS failed to grant employment authorization incident to status for L-2s. The other issue relates to H-4s whose work permits expire prior to their H-4 status; this is a group that always met the regulatory test for automatic extension of EADs, but the agency previously prohibited them from that benefit and forced them to wait for re-authorization. People were suffering. They were losing their high-paying jobs for absolutely no legitimate reason causing harm to them and U.S. businesses. So, while I’m glad the agency finally followed the law, it is frankly frustrating that an easily fixable issue took this long to address.”
The Grady Firm works with dynamic employers and employees across the country to prepare successful employment-based visa and Green Card applications. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment.
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This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.