Federal litigation brought by a group of spouses of temporary workers (Shergill, et al. v. Mayorkas) was settled today resulting in a significant positive impact to H-4 and L-2 spouses seeking renewals of employment authorization. As a result of the settlement (embedded below), the Department of Homeland Security will recognize an automatic extension of H-4 and L-2 employment authorization where the applicant has submitted a timely filed renewal application. Similar to other categories which benefit from the “automatic extension” provisions, employment authorization will be extended for 180 days, but will terminate when the individual’s Form I-94 record expires or the application is approved or denied. Accordingly, the settlement does little to directly help individuals filing concurrent extensions and EAD renewals where the I-94 record will have expired.
Perhaps more significant, the settlement has directed US Citizenship and Immigration Services to amend its policy guidance to recognize L-2 spouses as employment authorized incident to status, meaning eligible L-2 visa holders will no longer be required to file the Form I-765, and instead present evidence of their L-2 spouse status as evidence of employment authorization for purposes of the I-9 verification process. Once this guidance is finalized, L-2 spouses will be employment authorized upon arrival or change of status to L-2.
The settlement directs US Citizenship and Immigration Services and US Customs and Border Protection to amend its policy guidance and procedures within 120 days (March 10, 2022). It is not clear from the agreement what (if any) impact this has on currently pending renewal applications. Additional guidance from the agencies and liaison groups will be forthcoming.
The Department’s final guidance on both of these categories will have critical strategic and timing implications for eligible H-4 and L-2 spouses and applicants should discuss with counsel and their employers.
To read the full settlement, click here.
Please contact your Dentons Immigration lawyer if you have any questions regarding the above information.