DHS Reaches Settlement Over H-4 and L-2 Spouse EAD

In an announcement by the American Immigration Lawyers Association (AILA) made today regarding H4 EAD status and L2 EAD status, H4 and L2 visa spouses of foreign workers will now automatically receive work permits, or 180-day extensions of existing work permits under the terms of a settlement with the Department of Homeland Security in Shergill, et al. v. Mayorkas.

This settlement provides legal changes for nonimmigrant spouses on H-4 and L-2 visas, who had previously experienced processing delays for employment authorization applications. According to the AILA, this settlement reverses a U.S. Citizenship and Immigration Services (USCIS) policy that had, up to this time, prevented spouses on H4 visas from receiving an automatic extension of their employment authorization during the period in which their employment authorization documents (EAD) were being processed. Importantly, this settlement also means that L2 visa holders with a valid L-2 I-94 will be able to work without filing an EAD application.

When Will H4 EAD and L2 EAD Changes Take Effect?

According to Steven Brown, an attorney working with the AILA, the USCIS intends to implement these H4 and L2 visa EAD changes within a period of 120 days, in order to allow sufficient time to coordinate with other government agencies. It is expected that USCIS will make a formal announcement regarding the changes soon.

H4 Visa EAD Expected Changes

The announcement is expected to result in the automatic renewal of employment authorization for applications that have a valid H4 status. To explain further:

  • H4 visa holders who have filed their I-765 renewal applications and have H4 status beyond their H4 EAD expiration date will automatically qualify for extension based on their EAD.
  • The automatic extension will terminate either 180 days from the previous EAD card’s expiration date, upon the end date of H-4 status, or upon adjudication of the EAD renewal application; whichever comes earliest.

It should be noted that H4 EAD automatic extension will only apply to H4 visa holders who retain H4 status even after their EAD expires. Individuals falling under this category may present their expired EAD, unexpired H-4 I-94, and I-765 extension receipt to their employers for I-9 purposes. Employers will be required to reverify work authorization when the I-94 expires upon either the adjudication of the I-765, or 180 days from the previous card’s expiration; whichever occurs earliest.

Upcoming L2 Visa EAD Changes

USCIS is expected to issue policy guidance stating that L2 spouses will be able to work without an EAD application by updating the I-94 form to reflect that its holder is indeed an L2 spouse. This will allow the I-94 to be used for I-9 employment eligibility verification purposes.

However, this change may take some time. While documentation is in the process of being updated, USCIS will allow automatic extensions for L2 visa holders who file their I-765 applications and continue to have L2 status beyond the expiration date of their L2 EAD.

L2 automatic extensions will cease either upon adjudication of the EAD renewal application, or after 180 days; whichever occurs first.

This is a developing story, and further updates are clarifications are expected in the form of a formal USCIS announcement in the near future.


What will this H4 EAD news mean for H4 spouses as a whole?

H4 nonimmigrants who are of lawful status and only need to renew their EAD will now receive an EAD auto extension. The extension will run for 180 days after the expiration of the EAD, in case USCIS does not file their employment authorization renewal in a timely manner.

I just applied for my H4 EAD for the first time. Does this new policy help me, or is it only for extension cases?

For now, the new policy only applies to H4 EAD extension cases. However, immigration attorneys are continuing to advocate on your behalf and fight for more changes.

How long is it expected to take for these changes to be implemented? If I’m a valid L2 visa holder with a current I-94 am I automatically included?

We will have to wait for USCIS to announce the changes to know the specifics. Once they make the announcement, effective dates and other details will be known.

Does this apply for an H4 extension that’s already been granted, but an EAD pending for over 180 days?

Once the EAD has expired, the extension is for the next 180 days, assuming H4 status remains valid beyond 180 days.

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