United States: USCIS to Ease Work Authorization Process for Certain L-2 and H-4 Spouses

According to the Shergill settlement agreement, USCIS will agree to permit standalone H-4 EAD applications to benefit from some form of automatic extension. Under the new policy, H-4 nonimmigrants who: (1) timely file EAD renewals; and (2) continue to have H-4 status beyond their current EAD expiration, will qualify for an automatic extension of up to 180 days. The length of the auto-extension will be the earlier of the following:

• The end of the H-4 status, as determined by their I-94 record;
• The approval or denial of the EAD application; or
• 180 days from the current EAD expiration date.

Under prevailing law and policy, L-2 nonimmigrants have been eligible to apply for EADs immediately upon being accorded L-2 status, but could not begin work until the EAD was approved. In the Shergill settlement, USCIS has agreed to change its interpretation of current regulations by permitting L-2 nonimmigrants to work lawfully without the need for an EAD, with some limitations. 

The agency has agreed that L-2 nonimmigrants should be deemed to be work-authorized incident to their status, which can be established by a valid I-94 specifying that the L-2 is the spouse of an L-1 nonimmigrant. This I-94 would be used as a List C document for Form I-9 purposes as long as it identifies the bearer as an L-2 spouse. The Department of Homeland Security does not currently issue L-2 I-94s indicating that the holder is a spouse (as opposed to a child) of an L-1, but will begin to do so as a result of the Shergill settlement. L-2 spouses who hold an I-94 that does not indicate their spousal status may continue to need an EAD in order to work, until they receive an I-94 with a spouse annotation (such as through an approved extension or a new I-94 issued after reentry to the United States).

The agreement also provides auto-extension policies for L-2s who still need to renew an EAD. The L-2 auto-extension policies mirror the H-4 policies in that the applicant must have filed a timely L-2 EAD renewal application and continue to have L-2 status beyond their current EAD expiration in order to qualify. The auto-extension duration is also the same as for the H-4 version.

The Shergill settlement is good news for some H-4 and L-2 spouses who could see relief from disruptions to their employment due to USCIS processing delays. However, there are some limitations in the new policies. Based on the terms of the settlement, H-4 nonimmigrants who file EAD renewals concurrently with an I-539 extension may receive only a brief auto-extension, just to the end of their current I-94 date. L-2s who do not hold an I-94 specifically noting their spousal status will still need an EAD to work until they are issued a new L-2 spousal I-94.

Fragomen is monitoring implementation guidance related to the new policies and will continue to provide updates.