A settlement has been reached in Shergill v. Mayorkas, a federal lawsuit seeking to compel US Citizenship and Immigration Services to follow its regulations by automatically granting work permit extensions to L-2 and H-4 nonimmigrant visa holders. Under the settlement agreement, the agency has agreed to change its policies regarding employment authorization documents for certain H-4 and L-2 nonimmigrant visa holders.

By law, L-2 visa holders are afforded work authorization incident to status and should not be required to obtain an employment authorization document (EAD). However, it has been a policy of US Citizenship and Immigration Services (USCIS) that they obtain an EAD prior to starting employment in the United States.

In Shergill v. Mayorkas[1]—filed in September 2021 in the US District Court for the Western District of Washington at Seattle—H-4 visa holders contended that they should be granted automatic EAD extensions if the H-4 visa holder filed for the extension in a timely manner prior to the expiration of their current work authorization.

KEY POLICY CHANGES TRIGGERED BY THE SETTLEMENT

Eligible H-4 visa holders who timely file an H-4 EAD renewal application and continue to have H-4 status beyond their current EAD expiration qualify for an automatic extension of up to 180 days. The automatic extension will terminate on the date in their current I-94 record; the approval or denial of their EAD application; or 180 days from the current EAD expiration date, whichever is earlier.

Eligible L-2 visa holders will be able to work incident to status as originally intended by the regulations, and will not need to obtain an EAD prior to beginning employment. An L-2 visa holder can evidence their work authorization through showing a valid I-94 that specifies the L-2 visa holder is the spouse of an L-1 visa holder.

• For Form I-9 employment eligibility verification purposes, the I-94 would be used as a List C document if the I-94 indicates that the L-2 is a spouse (as opposed to an L-2 dependent child). While current I-94 records do not distinguish between a spouse or child, the Department of Homeland Security has indicated that this will change within the next 120 days as a result of the settlement agreement, and new I-94 records will have this designation. Therefore, those who already have an I-94 record that does not show spousal status will continue to need an EAD in order to work, unless they obtain a new I-94 that contains the spousal annotation. This would typically occur through an approved extension of L-2 status or upon being inspected by US Customs and Border Protection upon the next entry into the United States.

L-2 visa holders will also qualify for an automatic extension under the same rules as specified for H-4 visa holders above.

LIMITED RELIEF FOR SPOUSES OF H1-B AND L-1 VISA HOLDERS

While this settlement agreement provides some relief for spouses of H-1B and L-1 visa holders, the settlement agreement still contains limitations. For example, the automatic extension can be fairly limited if the end-date on their I-94 arrival-departure record is in the near future. With the ongoing delays in processing EAD renewals, the automatic extension limitations may not resolve the issue of a potential gap in work authorization.

NEXT STEPS FOR EMPLOYERS

Employers are encouraged to continue to track expiration dates for H-4 and L-2 spouses who may need to file EAD renewals so that the applications can be prepared in advance and filed in a timely manner.

Looking ahead, we now await further guidance from USCIS on the details of how the settlement agreement will be implemented, in addition to updated guidance on Form I-9 employment eligibility verification as a result of this change.

[1] (21-cv-1296-RSM)

[View source.]