Litigation Provides Limited Relief to Dependent Spouses Seeking Work Permits

McCarter & English, LLP

McCarter & English, LLP

After years of outreach to USCIS, a major settlement (Shergill, et al. v. Mayorkas, 11/10/21) has forced the agency to update its policy to provide that certain H-4, E, or L-2 dependent spouses will qualify for an automatic extension of their work authorization, provided certain conditions are met. Adjudication of employment authorization documents (EADs), a process the USCIS itself estimates should take 12 minutes per application, has taken up to 20 months. Over the past few years, the delays have resulted in tens of thousands of lawful, employment-eligible immigrants being forced to forgo job offers or quit their jobs. This settlement provides welcome relief from the long delays in USCIS issuance of EADs and, in the case of L-2 and E dependent spouses, relief from the ever-higher USCIS filing fees.

As a result of the settlement, USCIS policy guidance, which is effective immediately, now provides that certain H-4, E, or L-2 dependent spouses qualify for automatic extension of their existing employment authorization if they properly filed an application to renew their H-4, E, or L-2-based EAD before it expires, and they have an unexpired Form I-94 showing their status as an H-4, E, or L-2 nonimmigrant.

The new guidance provides that:

  • The automatic extension of the EAD will continue until the earlier of the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD.

Unfortunately, this provision will be of limited benefit since many EADs are filed concurrently with a request to extend nonimmigrant status because an I-94 is also expiring within 180 days. A not-so-simple workaround given current travel conditions and delays in visa issuance at U.S. consulates would be to have a dependent spouse depart from the U.S. and reenter. Assuming that, upon reentry, the spouse is issued an extended I-94 based on the primary visa holder’s status, they could immediately file an EAD renewal application and benefit from the automatic extension provision.

  • A document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed EAD renewal application, and facially expired EAD may be acceptable to evidence unexpired employment authorization for Employment Eligibility Verification (Form I-9) purposes.
  • E and L-2 dependent spouses are employment authorized incident to their status, and therefore they are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD (such EADs are acceptable for Form I-9 as List A documents).

Within the next 120 days, DHS will take steps to modify Forms I-94 issued to E and L-2 dependents so that the revised Form I-94 containing a notation indicating that the bearer is an E or L-2 dependent spouse will be acceptable as evidence of employment authorization under List C of Form I-9. However, until such changes to the I-94 are implemented, spouses still need to rely on an EAD as evidence of employment authorization to present to employers for completion of Form I-9.

While these changes will help several classes of nonimmigrant spouses accept and retain employment, they do not offer any relief to H-4 spouses who, under current processing times, may be forced to wait up to 15 months for issuance of an initial EAD. Hopefully, this settlement and the anticipation of future litigation will encourage USCIS to continue to improve its EAD adjudication policies.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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