On November 10, 2021, the U.S. Department of Homeland Security entered into a settlement with plaintiffs, significantly changing USCIS policy regarding work authorization for qualified H-4 and L-2 status holders. Both of the below policies are set to become effective in 120 days.
Key Highlights
Foreign national spouses of H-1B holders in eligible H-4 status with valid EADs and who have timely filed their EAD renewals will benefit from automatic work authorization for up to: 1) the expiration of the H-4 I-94, 2) 180 days beyond the expiry of the EAD or 3) until the renewal application is adjudicated, whichever is sooner. One point of nuance is that the H-4 holder must have a valid H-4 status, with a valid I-94, for this new policy to apply. If a foreign national’s H-4 status is expiring at the same time as their EAD, they will not be able to continue to work while both the H-4 status renewal and EAD are pending.
USCIS will work with CBP to effectuate a new policy that allows foreign national spouses of L-1 holders who hold valid L-2 status to be granted employment authorization incidental to their status. Going forward, L-2 spouses will be issued I-94s that can also be used to evidence work authorization as a List C document for I-9 purposes. Until a qualified L-2 holder is able to get a new I-94 with this indication, L-2 holders who maintain valid L-2 status and have an EAD extension pending are eligible to continue to work past the EAD expiry for up to 180 days, expiration of their I-94, or until the EAD application is adjudicated, whichever is sooner.
Per the settlement, USCIS can take up to 120 days to make necessary procedural adjustments.
Erickson Insights
This settlement means significant changes for L-2 and H-4 visa holders. Current processing times for dependent EADs have extended beyond one year in recent months, causing significant interruptions in work authorization, especially as USCIS does not allow EAD extension applications to be filed more than 6 months ahead of the EAD’s expiration. EIG expects USCIS to make an implementation announcement within the 120-day window before the policy changes take effect.
For more information, the redacted settlement agreement is here, and an EIG FAQ is here.
Erickson Immigration Group will continue to share updates as more news is available. If you have questions about anything we’re reporting above or case-specific questions, please contact your EIG attorney.