Settlement Reached on H-4/L-2 Spousal EAD Lawsuit - Automatic Extension to be Granted
Yesterday, November 10th, a settlement agreement was announced in Shergill, et al. v. Mayorkas, a class action lawsuit involving employment authorization for H-4 and L-2 spouses. The lawsuit was filed on September 23, 2021 by the American Immigration Lawyers Association (AILA) and its litigation partners on behalf of plaintiffs, comprised of fifteen individuals with pending applications for H-4 and L-2 employment authorization document (EAD).
The Shergill lawsuit was triggered by the U.S. Citizenship & Immigration Services' (USCIS) exceedingly long processing times for EAD renewals, which has resulted in many foreign workers losing work authorization. The lawsuit claims that H-4 and L-2 spouses should be entitled to an automatic extension of work authorization where a renewal is timely filed, similar to other EAD renewal application filings.
Automatic EAD Extensions for H-4 and L-2 Spouses: Under the settlement agreement, the USCIS will amend its policy to grant automatic work authorization extensions during the pendency of timely filed I-765 applications for EAD renewal for H-4 and L-2 spouses whose EADs expire prior to the expiration of their period of authorized stay, as indicated on their I-94, arrival departure record.
The automatic EAD extension will terminate when one of the following conditions are met, whichever occurs first:
H-4/L-2 (Form I-94) expiration date,
180 days from the EAD expiration date, or
Date the I-765 is approved or denied.
No later than March 10, 2022 (within 120 days of the settlement agreement), the USCIS will amend receipt notices for EAD applications. The notices will be revised to include a description of the H-4/L-2 spousal EAD auto-extension rules and how Form I-9 reverification may be completed. Presentation of the expired EAD, I-765 filing receipt showing timely submission, and an unexpired Form I-94 showing H-4/L-2 status as a “List C Document” will be required. The employer will be required to reverify work authorization when the auto-extension terminates.
EADs No Longer Required for L-2 Spouses: As a result of the settlement, the USCIS will also issue policy guidance stating that L-2 spouses are employment authorized “incident to status,” and may engage in employment without first having to obtain an EAD. No later than March 10, 2022, the USCIS in cooperation with the Customs and Border Protection Agency (CBP), will change the Form I-94 to indicate that the bearer is an L-2 spouse, thereby making it possible to use the Form I-94 as a List C document for I-9 purposes. Note that L-2 spouses may not benefit from this new rule until the Form I-94 has been revised to indicate L-2 spousal status. In the meantime, those who have been issued an L-2 EAD may be eligible for an auto-extension described above.
How this Affects Our Clients
This Shergill settlement is welcome news that will benefit U.S. businesses and H-1B and L-1 workers by helping to mitigate job terminations caused by long EAD processing times for employment-authorized spouses.
Please note however that this settlement agreement appears to only benefit individuals with valid H-4 / L-2 status who filed standalone EAD renewal applications, and will not benefit individuals who concurrently filed the H-4 extension application with the EAD renewal application. The settlement agreement also has no impact on initial H-4 EAD applicants, or EAD applications for spouses in E-1, E-2 or E-3 dependent status.
We will be reaching out to employees of our clients in H-4 or L-2 status who may be impacted by this agreement, and will keep our clients updated with any new information regarding the implementation of these changes.