A recent settlement between the American Immigration Lawyers Association (AILA) and the Department of Homeland Security (DHS) will result in two major changes to the way that USCIS treats L-2 and H-4 work authorization: L-2 holders will be granted automatic employment authorization incident to their status and H-4 holders will be granted automatic renewals of employment authorization for applicants that already have valid H-4 status (but an expired EAD card). Green and Spiegel is still waiting for clarity on how E-2 and E-3 dependent spouses will be treated, given this new USCIS policy.
USCIS will also issue policy guidance that states L-2 spouses are authorized for employment in the United States incident to status. CBP will be instructed to annotate the I-94 to indicate that the individual is an L-2 spouse, allowing the I-94 to be used for I-9 verification purposes. This means that L-2 visa holders will no longer have to apply for a separate EAD after entering the United States. As these changes my take up to 6 months to implement, to bridge the gap USCIS will also allow for automatic extensions for L-2 nonimmigrants who timely file the I-765 EAD renewal applications and continue to have L-2 status (whether by extension or travel). The automatic extensions will terminate on the earlier of the end date of L-2 status, adjudication of the EAD renewal application, or 180 days following expiration of the previous EAD card.
USCIS will provide for automatic renewals of employment authorization for applications that already have valid H-4 status. Individuals that have timely filed their I-765 EAD renewal applications, and continue to have H-4 status beyond the expiration date of the EAD will qualify for the automatic extension. The automatic extension will terminate on the earlier of the end-date of the H-4 status, adjudication of the EAD application, or 180 days from the previous card’s expiration. –
This reflects a massive change of position for USCIS – until now, L-2 and H-4 visa holders entered the United States and were required to apply separately for work authorization. This application process can take months, and results in many otherwise-willing L-1 and H-1B spouses being unable to work for long stretches of time.
The change in policy toward L-2 and H-4 visa holders is long-awaited. For years, the immigration law community has communicated to USCIS regarding the long EAD application processing times, leading to many H-4 and L-2 visa holders being unable to work in the United States because of an EAD extension taking over 6 months to adjudicate. Additionally, with employment authorization not being directly tied to one’s visa extension, H-4 and L-2 holders routinely had work permits expire before their status did, making it challenging for Employer’s to predict a gap in work authorization.
After years without meaningful response from the agency, AILA litigators filed a class action suit in late September, arguing that the ability to work for L-2 visa holders is incidental to their status, and therefore that they should not have to apply separately for work authorization. Additionally, it was argued that H-4 and L-2 holders should receive an automatic 180-day extension of their employment authorization if their visa status was extended, as it is not necessary to adjudicate the holder’s underlying status when an extension had already been granted. These arguments proved fruitful, and the settlement resulted in the resolution of both of these points.
This settlement goes a long way in providing peace of mind and financial security to L-2 and H-4 visa holders and their families. Individuals with L-2 status on their I-94 will be authorized to work in the United States, and all individuals with H-4 status will receive the automatic 180-day extension provided they have a timely filed EAD application pending.
Green and Spiegel, An Immigration Law Firm with Six Decades of Experience:
Green and Spiegel is monitoring this situation closely and will continue to update our blog and provide E-Alerts to advise on the latest developments. As always, we strongly encourage you to reach out to our office if you have any questions regarding if or how these changes impact you, your business, and your family. Our office number is (215)395-8959, we can be reached via web.