November 18, 2021

Good News! USCIS will change H-4, L-2 and E-2 EAD policies

This message relates to changes in the adjudication of the H-4, L-2 and E-2 work permits. If the information does not apply to your situation, you may disregard it.

As a result of a settlement agreement in a federal lawsuit, Shergill, et al. v. Mayorkas, and, after considering public comments received in response to the Identifying Barriers Across USCIS Benefits and Services; Request for Public Input, USCIS has agreed to change its employment authorization policies with respect to some H-4, L-2 and E-2 dependent spouse employment authorization document (“EAD”) applications.

Under the Shergill settlement, eligible H-4 nonimmigrant spouses who file a timely standalone H-4 EAD renewal application will benefit from an auto-extension that terminates on the earliest of their current I-94 date, the approval or denial of their EAD renewal, or 180 days.

Likewise, L-2 and E-2 nonimmigrant spouses will no longer need to apply and wait for EAD approval to begin employment in the United States. Eligible L-2 and E-2 nonimmigrants will be able to work incident to their nonimmigrant status, without the need for an EAD. The status of L-2 and E-2 nonimmigrants is to be established by a valid I-94 specifying that the L-2 or E-2 nonimmigrant is the spouse of an L-1 or E-2 principle nonimmigrant. Under the terms of the settlement, USCIS has 120 days from the effective date of the settlement (November 10, 2021) to coordinate with CBP to start issuing I-94 records to indicate that the bearer is an L-2 or E-2 spouse. L-2 and E-2 spouses who hold an I-94 that does not have a spouse annotation may need to maintain a valid EAD in order to work until they receive an I-94 with a spouse annotation.

The settlement agreement also provides auto-extension policies, similar to H-4 spouses above, for L-2s and E-2s who timely file EAD renewal applications and continue to have status beyond their current EAD expiration. The auto-extension duration is the same as for the H-4 version.

On November 11, 2021 USCIS announced that the agency has updated its Policy Manual in order to implement these changes. The updated policy states that:

“… the following combination of documents evidence the automatic extension of the previous EAD, and are acceptable to present to employers for Form I-9 purposes: Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L), Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and the facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).”

Please do not hesitate to contact our office if you have any questions about how these changes affect your personal situation.

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