New USCIS authorized work changes for H4 and L2 visa holders

Long waits for USCIS processing

Non-immigrant spouses of H-1B and L-1 visa holders have long suffered processing delays of their Employment Authorization Documents (EADs) due to pandemic-related slowdowns at the U.S. Citizenship and Immigration Services (USCIS) and backlogs cause by biometric information collection. Many spouses were forced to stop work or lose their jobs as a result of the long delays when it came to EAD renewals which were estimated to be processed within 9-14 months.

However, spouses of H-1B visa holders (or H4 visa holders) and spouses of L1 visa holders (or L2 visa holders) will now see some relief thanks to a recent lawsuit settlement (Shergill vs. Mayorkas) that stipulates new rules for the handling of EADs for these specific visa holders including no longer being required to submit biometric information for H4 EADs. These new policy changes include automatic 180-day EAD extensions for H-4 visa holders who have pending EAD applications and L2 visa holders no longer needing to file for employment authorization in order to work in the United States.

New rules under a recent lawsuit settlement

As a way for H4 and L2 visa holders not to be penalized for the long processing times of the USCIS, new rules regarding working in the United States will now be implemented thanks in part to the lawsuit settlement. These include the following changes:

• H-4 visa holders who have already been approved for an EAD and would like to file for EAD renewal will receive an automatic 180- day extension of the expiring EAD. (It should be noted that this is not for the first-time H-4 EAD applicants who still be subject to the same processing times as before)
• L-2 visa holders will be authorized to work in the United States as part of their valid L-2 status. L-2 visa holders will no longer need to file for an EAD in order to be authorized to work in the U.S.

Before all of the policy changes take place, there will be a 120-day implementation period. During this time, L-2 visa holders who already have an EAD that will expire within 120 days will need to timely file for an EAD extension. If the EAD renewal application is filed in time, L-2 visa holders will automatically receive a 180-day extension.

For L-2 visa holders who are seeking employment authorization for the first time will need to wait until the I-94 record formatting is updated by USCIS to indicate ‘L-2 spouse’ (which will allow for authorized employment in the United States without an EAD) instead of the ‘L-2’ format.

More lawsuits to come

This recent settlement was a result of the lawsuit Shergill vs. Mayorkas filed in Washington state on behalf of L-2 and H-4 plaintiffs who have been negatively affected by the delays in the reauthorization of their work permits.

However, there is still another class-action lawsuit filed by the American Immigration Lawyers Association (AILA) in March 2021 (Edakunni et al vs. Mayorkas). This lawsuit is seeking the Department of Homeland Security (DHS) to correct policies that cause spouses of non-immigrant visa holders to lose their work authorization due to the years-long wait for renewal. As a result of the still-pending case, the USCIS suspended the collection of biometric information for H4 EADs which was responsible for many of the processing delays.

Currently, this case is still pending and is awaiting action by the courts.