Changes to H4 and L2 work authorization following USCIS Lawsuit Settlement

On November 10, 2021, U.S. Citizenship and Immigration Services (USCIS) reached a settlement in the Shergill v. Mayorkas class action lawsuit. As part of the settlement, USCIS agreed to update its policy relating to H-4 and L-2 spousal Employment Authorization Document (EAD) applications.

L-2 Work Authorization Incident to Status

On January 31, 2022 Customs and Border Protection (CBP) quietly implemented a significant change for L2 Spouses, now annotating L2 spouses as “L2S” or “L2Y” on their I-94s. This new annotation is sufficient to submit to employers for I-9 work authorization and solidifies that L2 spouses are authorized to work incident to their status.

The November 10, 2021 USCIS policy memorandum issued in response to the lawsuit settlement stated that E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to file EADs for employment authorization.  However, the policy memo made a significant limitation by stating that “until such time as USCIS can implement changes to the I-94 to distinguish E and L spouses from E and L children, E and L spouses would still need to rely upon an EAD as evidence of employment authorization. Rather, per the terms of the settlement, USCIS, in conjunction with U.S. Customs and Border Protection (CBP), was given 120 days to modify the current Form I-94 for L and E spouses to be used for work authorization. Practitioners, employers, and L visa holders were all left waiting for this change to be implemented without information on when the change may actually occur other than “120 days” from the date of the settlement. Further, neither USCIS nor CBP have officially released an update that they have now implemented the L2S annotation. American Immigration Lawyer’s Association’s liaison committee was able to confirm with CBP Headquarters that new E and L Class of Admission (COA) codes were implemented on January 31, 2022. Upon entry, the I-94s generated for the spouses of E and L holders will reflect these new COA.

L-2 spouses who are currently in the U.S. in valid L-2 status but entered the U.S. prior to January 31, 2022 can try to contact their local deferred inspection sites and request that their I-94s be updated to reflect the new “L2S” or “L2Y” annotation for work authorization.  However, they may be advised that they will need to get this updated with USCIS instead or travel abroad and reenter.

Automatic 180 work authorization for timely filed H4 EAD Extensions:

The November 10, 2021 USCIS policy memorandum also granted automatic EAD extensions for H4 spouses applicants, however, the actual relief granted is limited. Specifically:

H-4 spouses renewing their EAD’s will be allowed to utilize up to 180 days of work authorization beyond their current EAD expirations, for timely filed EAD extensions. This applies ONLY if:

1. The EAD extension was filed prior to the current EAD expiration; AND
2. The applicant is in valid H-4 status, meaning they have an unexpired H4 I-94.

The requirement of an unexpired H4 I-94 significantly limits the benefits of the 180-day auto extension of the pending EAD renewals because often the H4 and EAD extensions are filed and adjudicated together.

One strategy to utilize this benefit is by obtaining the H4 extension through US Customs (CBP) by traveling abroad and reentering.

• H4 validity periods are generally based on the primary spouses H-1B validity period as listed on the H-1B I-797 approval notice.
• H-1B can be filed and adjudicated within 15 days of filing if submitted via premium processing. This allows the H-1B to be approved significantly faster than H4s as H4s do not have the option to be filed premium processing.
• Once the H-1B approval notice is received, the H4 spouse can travel abroad and extend their H4 status and obtain a new I-94 with US. Customs (CBP) to match the H-1B expiration by presenting the spouses’ I-797 H-1B approval notice.

This travel strategy will then grant the H4 applicant an ‘unexpired I-94’ and will therefore allow the H4 applicant to utilize the EAD auto extension for up to 180 days beyond the current EADs expiration.

It is important to note that an I-94 authorized period of stay in the U.S. when issued by CBP will be either the end validity date of the I-797 approval notice OR the expiration date of your passport, whichever is sooner.  Please always check your I-94 upon each entry in the U.S. I94 – Official Website (dhs.gov)