Certain spouses of high-skilled H-1B and L-1 workers have been negatively impacted by extended USCIS delays in processing Employment Authorization Document (EAD) applications. Because of these delays, many spouses have been forced to stop working while waiting for USCIS to approve their EAD extensions. In a recent settlement agreement (Shergill et al, v Mayorkas, 21-cv-1296-RSM) with AILA (American Immigration Lawyers Association) and its litigation partners, USCIS has agreed to change its policies regarding H-4 and L-2 work authorization, to the much-needed benefit of these spouses. USCIS is expected to issue formal guidance for implementation of these changes in the next 120 days. Similar rules for E spouses may be issued pending outcome in separate federal litigation.

For certain H-4 EAD applicants who have timely filed and continue to have H-4 status (as indicated on their Form I-94) beyond their current EAD expiration, USCIS will automatically extend work authorization for up to 180 days past the EAD card expiration. For H-4 EAD applicants whose I-94 status does not extend beyond their current EAD expiration—perhaps because their underlying H-4 extensions are still pending—we encourage consultation with a Gee & Zhang immigration attorney to explore strategies for H-4 work authorization renewal.

For L-2 spouses, USCIS will grant work authorization based solely on L-2 status, meaning that L-2 spouses will no longer need to apply separately for work authorization and then wait for the approval and delivery of physical EAD cards in order to start working. In cooperation with CBP (Customs and Border Protection), USCIS will be changing the Form I-94 to specify that the foreign national is an L-2 spouse (as opposed to an L-2 child, for example). The new Form I-94 will then serve as evidence of work authorization for purposes of Form I-9 Employment Eligibility Verification. Changes to the Form I-94 may take some time to implement, and a similar provision for automatic 180 extensions of L-2 EAD renewal applications is outlined in the settlement agreement. Until the changes to the Form I-94 can be fully implemented, please reach out to a Gee & Zhang attorney with any concerns about documenting your work-authorized L-2 status.

The settlement agreement is certainly welcome news for H-4 and L-2 spouses who may face work interruptions due to long USCIS delays in EAD processing. There may, however, be limitations to these upcoming changes based on your specific situation. Our Houston-based immigration attorneys help our clients navigate such limitations by strategizing creative solutions to achieve immigration goals.