Plaintiffs in Shergill, et al. v. Mayorkas, No. 21-cv-1295-RSM reached a settlement today with the Department of Homeland Security that represents a major victory for H-4 and L-2 spouses in need of employment authorization.
The settlement provides:
- L-2 spouses (not H-4 spouses) will have employment authorization incident to status, and
- Both L-2 and H-4 spouses will have their employment authorization pursuant to an unexpired Employment Authorization Document (“EAD”) automatically extended for up to 180 days upon the timely filing of an extension application and proof their L-2/H-4 status will continue beyond the expiration date of the EAD
The settlement requires USCIS to do the following:
1. Issue guidance confirming L-2 spouses are employment-authorized incident to status, and in cooperation with CBP, change the Form I-94 within 120 days of November 10, 2021, to indicate the L-2 spouse can use the I-94 as a List C document for Form I-9 purposes.
2. Issue guidance confirming H-4 and L-2 spouses who timely file an I-765 EAD renewal application and continue to have H-4/L-2 status beyond the expiration date of their EAD qualify for automatic extension of their (c)(26)/(a)(18)-based employment authorization and EAD.
3. Issue guidance confirming the validity of the auto-extension shall be through the earlier of: the end of H-4/L-2 status on Form I-94, the approval or denial of the Form I-765 EAD extension application, or 180 days from the “Card Expires” date on the EAD.
4. Issue guidance explaining to employers for I-9 purposes that EAD auto-extensions apply to H-4/L-2 spouses who continue to have such status after their EAD expires, and to complete Form I-9 these individuals may present this combination of documents to their employers as (in lieu of) an unexpired EAD as defined in 8 CFR § 274a.13(d)(4):
- a facially expired EAD indicating Category C26 for H-4 or A18 for L-2;
- Form I-797C, Notice of Action for Form I-765 with Class requested indicating (c)(26) for H-4 or (a)(18) for L-2 and showing that the I-765 EAD renewal application was filed before the EAD expired; and
- unexpired Form I-94, Arrival-Departure Record showing valid H-4/L-2 nonimmigrant status.
5. Issue guidance informing employers they will need to reverify the above work authorization upon the earlier of the end date on Form I-94, date the I-765 is approved or denied, or the 180th day of the EAD auto-extension period.
6. Within 120 days of November 10, 2021, amend the receipt notice currently issued to H-4/L-2 EAD extension applicants to detail the EAD auto-extension eligibility for those holding H-4/L-2 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.
Hopefully, guidance published by USCIS will address many unanswered questions about the interpretation and implementation of this settlement. Meanwhile, other litigation remains pending that seeks relief for H-4s related to long-pending I-539 Extension/I-765 EAD applications.