Settlement Reached Regarding Employment Authorization for eligible H-4, E and L Dependent Spouses

Written by: Ashik R. Jahan, Esq.

https://www.forbes.com/sites/stuartanderson/2021/11/11/uscis-settlement-is-good-news-for-l-1-and-h-1b-visa-spouses/?sh=6548859e64ea

The American Immigration Lawyers Association (AILA) and its litigation partners entered into a settlement agreement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas.   The agreement provides structural changes for H-4 (dependent spouses of H-1B visa holders) E and L (dependent spouses of E or L visa holders) who have long suffered from extremely delayed processing times for the processing of applications for an employment authorization documentation (EAD).

Despite the plain statutory language, United States Citizenship and Immigration Services (USCIS) had long failed to grant employment authorization incident to status for E or L dependent spouses, instead choosing to require them to file applications for an EAD. Moreover, for H-4 spouses whose work permits expire prior to their H-4 status expiring, the agency had previously prohibited them from the benefit of automatic extension of their EAD with a timely filed extension. Instead, they were forced to wait for reauthorization, causing many H-4 spouses to lose their jobs due to lack of ongoing work authorization for absolutely no legitimate reason.

In summary, the settlement provides:

For H-4s:

Within 120 days of the Effective Date, USCIS will amend the receipt notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.

For E and L dependent spouses:

USCIS has issued policy guidance that states that E and L dependent spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94 within 120 days of the Effective Date, to indicate that the bearer is an E or L dependent spouse so that it can be used as a List C document for Form I-9 purposes.   Dependent E or L spouses may still file for the EAD if desired.

The guidance, contained in Volume 10 of the Policy Manual for USCIS is effective immediately, as USCIS has updated its interpretation and implementation of 8 CFR 274a.13(d) to accomplish the above.

For questions related to these new changes, and how it may impact H-4 or E and L dependent spouse work authorization, please reach out to our practice group leader, Ashik Jahan, at ajahan@hallboothsmith or 404.954.6971.