Good news is rare for spouses of L-1 and H-1B visa holders in recent years. U.S. Many of these spouses are granted relief by a new settlement with USCIS, though additional litigation may be necessary.
L-2 spouses won’t need to apply for work authorization once the agency has implemented it. They will only need an EAD (Employment Authorization Document), to prove their legal status to be allowed to work in the United States,” Jesse Bless (director of litigation, American Immigration Lawyers Association) said in an interview. H-4 spouses with legal status who need to renew their employment authorization will be granted an automatic extension for 180 days if the agency fails to process their timely-filed applications.
Bless points out that the Shergill settlement was affected from an pending lawsuit ( Edakunni). Edakunni was filed in March 2021 to seek legal status and work authorization. The case was settled with USCIS Shergill. It was filed by L-2 and H-4 petitioners who sought extensions or reauthorization of employment.
ted that “USCIS has not yet settled the case since March and the judge has yet to make a decision.”
Brad Banias, Wasden Banias, sta
The March 2021 class-action suit was filed by the American Immigration Lawyers Association, Wasden Banias, and others to force the Department of Homeland Security to correct policies that led to many spouses of H-1B or L-1 visa holders losing their work authorization. Due to the policies it could take USCIS up to two years to process many spouse applications making it mathematically impossible to keep the spouses employed.
The suit was filed in March 2021 by one of the original plaintiffs. She came to America as an international student, and she returned as the spouse of an H-1B visa holder. She was eligible for an H-4-EAD (Employment Authorization Document) as she was the spouse of an H-1B worker with an approved immigrant visa petition. She was a quality assurance auditor in Massachusetts, and worked in health care. inaction caused her to lose her job.
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Many spouses will benefit from the recent settlement. Berry Appleman and Leiden stated that “H-4 and L-2 spouses were disproportionately affected” by delays in processing EAD applications by USCIS. Many have had to quit their jobs while they wait for their renewal cards. These changes will bring relief to the families of these individuals, as well as relieve some of the pressure on other USCIS work streams.
Fragomen Law Firm noted that “there are some limitations in these new policies.” According to the settlement, H-4 immigrants who file EAD renewals concurrently and an I-539 extension might receive only a short auto-extension just before the expiration of their I-94 date. L-2s without an I-94 specifically indicating their spousal status, will still require an EAD until they receive a new L-2 spousal I-94.
expiration date, are eligible for an automatic extension of their (c.(26))-based employment authorization and EADs.”
“USCIS will issue appropriate guidance for employers and benefit granting agents. This guidance will say that EAD auto extensions are available to qualified H-4 nonimmigrants who have H-4 status following their (c.(26) EAD expiration.”
to indicate that the bearer of the Form I-94 is an L-2 spouse so it can be used for Form I-9 purposes as a List C document.”
USCIS will interpret 8CRS SS 274a.13d to allow certain L-2 spouses, who timely filed I-765 EAD renewal applications and maintained L-2 status after their EAD expired, to be eligible for an automatic extension (c. (18)) of their EAD-based EADs.
USCIS will provide guidance to benefit granting agencies, employers, and benefit granting agents about how it interprets 8 CFR SS 274.13 (d) in relation to L-2 dependent spouses. This guidance will clarify that L-2 nonimmigrant L-2 spouses who are L-2 citizens can apply for EAD auto extensions even after their (18) EAD expires.
Steven Brown, Reddy & Neumann and Wasden Banias announced that the litigation would continue in March to seek broader changes and fix delays in H-4 spouses’ employment authorization. Kripa Upadhyay, Orbit Law’s chief litigation officer, was also involved.
According to Brad Banias’, one result of the still-pending March case ( Edakunni), is that USCIS has almost immediately suspended its biometric policy regarding H4 EADs. Many of the delays were due to USCIS’ biometric policy. All pending petitions were also adjudicated by USCIS for the original plaintiffs.
Jon Wasden of Wasden Banias said in an interview that “AILA and U.S. Chamber of Commerce have tried for 20 years to get USCIS see reason, grant employment authorization incidental to status for L-2s.” It is in the statute. H-4s are also affected by H-4s whose employment authorization documents expire before they become H-4. They meet the regulatory requirements for automatic extension of EADs. However, the agency prohibited them from receiving that benefit.
Wasden was pleased with the settlement but criticised USCIS for taking too long to settle his case. Wasden stated that he and his wife contacted USCIS several weeks before filing the suit. They gave them their arguments and informed them of our plans. They could have done the right things early and avoided four months’ worth of unemployment for L-2s or some H-4s. They refused and fought it out. They realised that there was no defence until they were in court. Then they decided to change their course and follow the law. It’s frustrating. It’s frustrating. People are suffering and you bring an easily fixed issue to the government. But they refuse to take responsibility or do the right thing until the sword falls over their heads.”
