On November 10, 2021, the parties in Shergill, et al v Mayorkas reached an important settlement that now affords an automatic extension of employment authorization for up to 180 days in narrowly defined circumstances for H-4 and L-2 dependent spouses.  In addition, L-2 dependent spouses are also now considered employment authorized incident to their status under the settlement.

Following the settlement agreement, U.S. Citizenship & Immigration Service (USCIS) issued November 12, 2021, a Policy Alert to address the automatic extension of employment authorization and employment authorization incident to status.  Notably, the Policy Alert also addresses employment authorization for E-2 dependent spouses.

More specifically, the USCIS Policy Alert indicates that:

• Similar to H-4 and L-2 spouses, E-2 spouses also qualify for the automatic extension of employment authorization and the accompanying EAD for up to 180 days, if certain conditions are met.
• Similar to L-2 dependent spouses, USCIS will now consider E-2 spouses to be employment authorized incident to status.

Important Note: USCIS has indicated in its Policy Alert that E-2 and L-2 spouses will still need to present employers with evidence of employment authorization and identity for purposes of the I-9 form, although – at this time  – the only document that satisfies the I-9 document requirement is the EAD.  USCIS is, therefore, taking steps to modify the notations of the Form I-94 for both E-2 and L-2 spouses for alternative evidence of employment authorization for this group.  Until then, however, USCIS anticipates that E-2 and L-2 dependent spouses will likely continue requesting an EAD to meet Form I-9 requirements.

Nilan Johnson Lewis PA will monitor developments of this important issue.