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.
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.
L-2 visa holders will also qualify for an automatic extension under the same rules as specified for H-4 visa holders above.
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.
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.
If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord
Miami
Laura C. Garvin
[1] (21-cv-1296-RSM)