In late September of this year, Reddy & Neumann Senior Associate Steven Brown, together with Jonathan Wasden from Wasden Banias and Jesse Bless from the American Immigration Lawyers Association filed a second class action case in Seattle on behalf of stand-alone H-4 and L-2 EAD applicants as well as L-2 visa holders. This case is Shergill et al. v. Mayorkas. This case sought to resolve two major issues. First is that L-2 visa holders should be granted work authorization incident to status. The second is that USCIS should allow the up to 180 day automatic extension for H-4 and L-2 EAD extensions when the applicant has already had the H-4 or L-2 status extension granted either through USCIS or through travel.

            Following the complete briefing of the plaintiffs’ motion for preliminary injunction in late October, USCIS approached the litigation team on settling the case.

            It is worth noting that this is a separate case from the first class action case filed by the above team, Edakunni v. Mayorkas which was filed to address the delays of H-4 EADs, L-2 EADs, and the underlining I-539s. So far, that case has resulted in the suspension of the biometrics policy that has significantly caused these delays. As of this article, that case still remains pending and is fully briefed by both parties, and awaits a decision from the judge. We continue to pursue justice for H-4 EADs that have been delayed and the underlying I-539s for H-4 and L-2 applicants.

Background

            It is important to understand why the Shergill case was brought.  As for the first issue, it was our belief that the L-2 statute clearly states that L-2 status holders should be granted work authorization incident to status. This means that they are able to work by just being in L-2 status, and do not need to have a separate application for L-2 EAD nor need an EAD card in order to work.  8 U.S.C. 1184(c)(2)(E) states that in the instance of L-2 spouses “the Attorney General shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘employment authorized’ endorsement or other appropriate work permit.”  (emphasis added). It was our belief that USCIS has been improperly interpreting this statute to require EAD applications and an EAD card for L-2 visa holders in order to work.

            The second issue is the lack of the 180 day automatic extension for H-4 EAD and L-2 EAD applicants when the underlying H-4 or L-2 status extension has already been adjudicated or the H-4 or L-2 visa holder has received their extension from travel. We refer to these as standalone EAD applications. Through the regulatory process, USCIS has previously declined to grant the automatic extension for H-4/L-2 EAD applicants based on the idea that USCIS still needs to adjudicate the underlying status application as well as the primary H-1B or L-1 spouse’s petition. However, in the standalone EAD context, there is no concern as the underlying status extension and the primary spouse’s status have already been granted.

L-2 and Standalone EAD Changes Coming

            As noted earlier, USCIS has agreed to settle this case in order to resolve these problems. While USCIS anticipates needing some time, up to 120 days, to work with all government agencies that will need to make all changes, these changes are concrete and signed and will have significant impact on EAD delays. An implementation announcement from USCIS is expected. The following changes will be implemented:

• Automatic Renewals of Employment Authorization for applications that already have valid H-4 status
  • USCIS interpret the relevant regulation so that H-4 nonimmigrants who have timely filed their I-765 EAD renewal applications, and continue to have H-4 status beyond the expiration date of their EAD, qualify for the automatic extension based on their (c)(26) EAD.
    • This automatic extension will terminate on the earlier of: the end date of the H-4 status, adjudication of the EAD renewal application, or 180 days from the previous card’s expiration date.
  • USCIS will issue appropriate guidance to employers and government agencies noting the following:
    • EAD automatic extensions apply only to H-4 nonimmigrants who continue to have H-4 status after their H-4 EAD expires.
    • For I-9 purposes, these individuals may present documentation to their employers such as their expired (c)(26) EAD, I-765 extension receipt notice, and unexpired H-4 I-94 showing valid H-4 status.
    • Employers will need to reverify work authorization upon expiration of the I-94, 180 days from previous card expiration, or upon the adjudication of the I-765 extension, whichever comes earliest.
  • USCIS will make notation on I-765 receipt notices providing details for the automatic extensions.
• L-2
  • USCIS will issue policy guidance that states L-2 spouses are employment authorized incident to status.
  • USCIS will coordinate with Customs and Border Patrol to change the Form I-94 to indicate that the I-94 bearer is an L-2 spouse so that the I-94 can be used for I-9 purposes as a List C document.
  • In order to bridge the gap while the I-94 documentation gets updated, USCIS will allow for automatic extension for L-2 nonimmigrants who timely file their I-765 EAD renewal applications and continue to have L-2 status beyond the expiration of their L-2 EAD.
    • This automatic extension will terminate on the earlier of: the end date of the L-2 status, adjudication of the EAD renewal application, or 180 days.
  • USCIS will issue appropriate guidance to employers and government agencies noting the following:
    • L-2 EAD automatic extensions apply only to L-2 nonimmigrants who continue to have L-2 status after their L-2 EAD expires.
    • For I-9 purposes, these individuals may present documentation to their employers such as their expired (a)(18) EAD, I-765 extension receipt notice, and unexpired L-2 I-94.
    • Employers will need to reverify work authorization upon expiration of the I-94, 180 days, or upon the adjudication of the I-765 extension, whichever comes earliest.

So What Does That Mean?

            For starters, the most significant change is that L-2 spouse visa holders will now have work authorization incident to status. This means that simply by being an L-2 spouse and having a valid L-2 I-94, you are authorized to work.

            For standalone H-4 EAD automatic extensions, it is not a blanket 180 day extension, and is narrowly applied for those that already have the H-4 extension and timely file an I-765 prior to the expiration of their current EAD. So, for example, if the H-1B spouse is approved, the H-4 spouse travels, gets a new extended I-94, and timely files the I-765, this automatic extension will be applicable.

Closing Thoughts

            This is a significant outcome that will have tremendous impact on all EADs. L-2s should face fewer hurdles when it comes to work authorization moving forward, and will be authorized to work when they enter the US and get their L-2 I-94. Additionally, while most H-4s file concurrently, this should now free up adjudicators who are otherwise working on L-2 EADs to now work on H-4 EADs, green card EADs, or other immigration benefits.

            As noted earlier, Steven Brown and our litigation partners continue to fight in Edakunni for justice on I-539 delays and H-4 EAD delays.