The Department of Homeland Security (DHS) is making “structural changes” to work authorization for H-4 and L-2 spouses. The changes result from an agreement settling litigation brought against the agency by the American Immigration Lawyers Association (AILA) and others,
Pursuant to the settlement agreement, the automatic extension provision will apply to an H-4 spouse of an H-1B worker when their EAD (employment authorization document) extension application is timely filed. The auto-extension of up to 180 days would only apply while the applicant is in H-4 status (i.e., until the H-4’s current I-94 expiration date) or 180-days, whichever is earlier. A decision on the extension application (approval or denial) would also supersede the automatic extension. As such, the potential benefit of this change will apply differently depending on the circumstances, which must be considered on a case-by-case basis.
The auto-extension provision applies to an L-2 spouse too, but it’s not clear whether it is meaningful in the L-2 context because the settlement agreement also provides that an L-2 spouse will be authorized to work “incident to status”. This means that an L-2 will not need an EAD as evidence of work authorization. Instead, an L-2 will receive an I-94 that includes an annotation indicating that they are the spouse of an L-1 (rather than an L-2 child). It’s not clear when the agencies will have the capability to annotate I-94s in this manner and what interim measures will be taken until then.
Although clarification is needed regarding implementation of the settlement agreement, these changes are momentous. Delays in the issuance of EAD cards have been felt by US employers and by H-4 and L-2 employees who have sometimes terminated employment relationships that would otherwise have continued. In this tight job market, the impact of losing an employee is significant, as is the loss of a job to an H-4 or L-2 spouse.
The settlement agreement resulted from the Shergill, et al. v. Mayorkas lawsuit filed by AILA, et al.
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Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP. For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors. Ms. Wadhwani’s practice covers the United States and Consulates worldwide. She is based in our Pittsburgh, Pennsylvania office. Please contact Ms. Wadhwani at firstname.lastname@example.org or at 412-394-5540.