The U.S. Citizenship and Immigration Service (USCIS) has entered into a settlement agreement in Shergill v. Mayorkas, which allows for L-2 visa holders to maintain work authorization while awaiting USCIS adjudication.

USCIS also released a policy alert on 12 November 2021 and updated its policy manual to reflect the changes below. 

Currently, L2 visa holders (spouses of L1 visa holders) must apply for an employment authorization document (EAD) after arriving in the U.S. to be able to work. L2 visa holders filing to renew their EAD were faced with extensive processing delays, resulting in the expiry of their current EAD, causing them to lose their work authorization for no fault of their own.

An action was filed arguing that L2 holders were being prejudiced due to USCIS’s processing delays. The settlement agreement expands L-2 work authorization as follows:

Beginning November 12, 2021, the EAD of an E and L dependent spouse, and employment authorization and EAD of an H-4 dependent spouse will be automatically extended for a period of up to 180 days if:

  • The dependent spouse properly filed an Application for Employment Authorization (Form I-765) for a renewal of their E, L, or H-4 dependent spouse-based EAD before the current EAD expired; and
  • The dependent spouse has an unexpired Form I-94 indicating valid E, L, or H-4 derivative status.

Any such automatic extension will terminate automatically on the earlier of:

  • The end of the validity period of the nonimmigrant status, as shown on the Form I-94;
  • The approval or denial of the application to renew the previous EAD using Form I-765; or
  • 180 days from the date of the expiration of the previous EAD.

In addition, L-2 spouses will be granted work authorization incident to status, meaning they will not require to file a separate EAD application. Their authorization to work will be noted in an updated version of their I-94 travel record. It’s important to note that the new I-94 form has not yet been implemented, with the USCIS committed to amending the form within 120 days of the settlement agreement.

In our view, the new automatic work authorization is a major step forward as it eliminates the need for an L2 holder to submit a separate EAD application after arriving in the U.S. The latter reduces unnecessary red tape and increases certainty for spouses of L1 visa holders.

While this step forward emerged from a lawsuit, and not from congressional legislative reform, at least the outcome has landed on the right policy setting.

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