January 07, 2022

Historic USCIS Settlement Agreement Reached to Ease Certain H-4 and L-2 Work Permit Processes and USCIS Expands to E Spouses

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This past week, USCIS entered into a settlement agreement that modifies policies related to work authorization for L-2 and H-4 spouses. Two days later, USCIS issued policy guidance confirming the application of the settlement agreement, and expanding its application to E spouses as well.

Under the settlement agreement, USCIS will deem L-2 spouses as having automatic employment authorization incident to their L-2 status and Customs and Border Protection ("CBP") will make it easier to document this employment authorization by issuing  an annotated I-94 record. This means that, in the future, an Employment Authorization Document ("EAD") will not be necessary for the L-2 spouse to work in the United States. The agreement indicates that within 120 days from the effective date of November 10, 2021, USCIS and CBP will update Form I-94 to reflect that the visa holder is an L-2 spouse. Once updated, an L-2 spousal Form I-94 can be used as a List C document for I-9 verification purposes.  In the interim, L-2 spouses who have a valid EAD will be granted an automatic extension of work authorization when an EAD renewal is timely filed. The automatic extension will end the earlier of (1) the L-2 expiration date as noted on the I-94 record, (2) the approval or denial of the EAD renewal, or (3) 180 days from the EAD expiration date. In addition, under the new USCIS policy guidance issued on November 12, 2021, these rules will also apply to E spouses.

With regard to H-4 spouses, USCIS has agreed to allow automatic extensions of work authorization under certain circumstances. H-4 spouses who timely file an extension of a valid H-4 EAD and have H-4 status beyond the EAD expiration, will be given an automatic extension of up to 180 days.  The duration of the automatic extension will terminate the earlier of (1) the H-4 expiration date as noted on the I-94 record, (2) the approval or denial of the EAD renewal, or (3) 180 days from the EAD expiration date.

The settlement agreement, and the resulting USCIS policy guidance, have limitations. L and E spouses that do not have an I-94 that identifies the bearer as an L or E spouse will still need to provide an EAD in order to legally work in the U.S. In addition, L or E spouses who have already arrived in the United States and have an initial application pending for an EAD do not appear to immediately benefit from the agreement. On the H-4 front, concurrently filed H-4/EAD extensions will only receive an extension of work authorization to the end of the current H-4 status (I-94). 

This guidance reflects a profound change in USCIS policy and will hopefully ease the disruptions to employment that many H, L, and E spouses have experienced, particularly of late as processing times for EADs have lengthened considerably.

Pryor Cashman is closely monitoring this development and will provide further guidance as additional agency guidance becomes available. Please contact the Pryor Cashman attorney with whom you work to discuss case-specific issues or concerns.

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