H-4 & L-2 Nonimmigrant Visa Holders: Federal Settlement Impacts Employment Authorizations

A settlement has been reached in Shergill v. Mayorkas, a federal lawsuit seeking to compel US Citizenship and Immigration Services to follow its regulations by automatically granting work permit extensions to L-2 and H-4 nonimmigrant visa holders. Under the settlement agreement, the agency has agreed to change its policies regarding employment authorization documents for certain H-4 and L-2 nonimmigrant visa holders.

By law, L-2 visa holders are afforded work authorization incident to status and should not be required to obtain an employment authorization document (EAD). However, it has been a policy of US Citizenship and Immigration Services (USCIS) that they obtain an EAD prior to starting employment in the United States.

In Shergill v. Mayorkas[1]—filed in September 2021 in the US District Court for the Western District of Washington at Seattle—H-4 visa holders contended that they should be granted automatic EAD extensions if the H-4 visa holder filed for the extension in a timely manner prior to the expiration of their current work authorization.

Key Policy Changes Triggered by the Settlement

Eligible H-4 visa holders who timely file an H-4 EAD renewal application and continue to have H-4 status beyond their current EAD expiration qualify for an automatic extension of up to 180 days. The automatic extension will terminate on the date in their current I-94 record; the approval or denial of their EAD application; or 180 days from the current EAD expiration date, whichever is earlier.

Eligible L-2 visa holders will be able to work incident to status as originally intended by the regulations, and will not need to obtain an EAD prior to beginning employment. An L-2 visa holder can evidence their work authorization through showing a valid I-94 that specifies the L-2 visa holder is the spouse of an L-1 visa holder.

• For Form I-9 employment eligibility verification purposes, the I-94 would be used as a List C document if the I-94 indicates that the L-2 is a spouse (as opposed to an L-2 dependent child). While current I-94 records do not distinguish between a spouse or child, the Department of Homeland Security has indicated that this will change within the next 120 days as a result of the settlement agreement, and new I-94 records will have this designation. Therefore, those who already have an I-94 record that does not show spousal status will continue to need an EAD in order to work, unless they obtain a new I-94 that contains the spousal annotation. This would typically occur through an approved extension of L-2 status or upon being inspected by US Customs and Border Protection upon the next entry into the United States.

L-2 visa holders will also qualify for an automatic extension under the same rules as specified for H-4 visa holders above.

Limited Relief for Spouses of H1-B and L-1 Visa Holders

While this settlement agreement provides some relief for spouses of H-1B and L-1 visa holders, the settlement agreement still contains limitations. For example, the automatic extension can be fairly limited if the end-date on their I-94 arrival-departure record is in the near future. With the ongoing delays in processing EAD renewals, the automatic extension limitations may not resolve the issue of a potential gap in work authorization.

Next Steps for Employers

Employers are encouraged to continue to track expiration dates for H-4 and L-2 spouses who may need to file EAD renewals so that the applications can be prepared in advance and filed in a timely manner.

Looking ahead, we now await further guidance from USCIS on the details of how the settlement agreement will be implemented, in addition to updated guidance on Form I-9 employment eligibility verification as a result of this change.

Contacts

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Miami
Laura C. Garvin

[1] (21-cv-1296-RSM)