Nonimmigrant spouses of H-1B and L-1 visa holders with long-pending EAD applications have finally received some relief. Based upon a settlement in Shergill v. Mayokas, USCIS is making major policy changes. Going forward, certain H-4 spouses with pending EAD applications will be entitled to 180-day automatic extensions of their EAD cards and L-2 spouses will no longer need EADs, they will have employment authorization incident to their L-2 status.

H-4 dependent spouses qualify for the 180-day automatic extension if:

  • The EAD renewal application is filed before the current EAD expires; and
  • The applicant’s Form I-94 Arrival/Departure Record shows unexpired H-4 status beyond the EAD expiration date.

The 180-day automatic extension will expire the earlier of:

  • The end of the applicant’s H-4 status as noted on their Form I-94;
  • The approval or denial of the Form I-765 renewal application; or
  • 180 days from the expiration date on the face of the current EAD.

With respect to Form I-9, Employment Eligibility Verification:

  • USCIS will issue specific guidance; basically, the employee will have to present the expired EAD, the I-797 receipt notice showing a timely filed renewal application, and an unexpired I-94 showing valid H-4 status.
  • Within 120 days, USCIS will start issuing receipt notices that detail the EAD automatic extension.

For L-2 dependents:

  • USCIS will issue policy guidance indicating that L-2 spouses are employment-authorized incident to status.
  • Within 120 days, in cooperation with Customs and Border Protection, USCIS will change the Form I-94 to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for I-9 purposes.
  • Until the Form I-94 is changed, L-2 spouses who timely file EAD renewal applications and have L-2 status beyond the EAD expiration date will be entitled to the same 180-day automatic extension that will apply to H-4 spouses.

As noted, these extensions will only help applicants who have valid H-4 or L-2 status that extends beyond the expiration dates of their current EADs. Applicants with pending H-4 extensions, however, may be able to take advantage of the automatic extensions if their spouses’ H-1B statuses have already been extended and they can leave the United States and extend their H-4 status by re-entering.

If you have questions about how the new policy will apply and what strategies may be necessary, Jackson Lewis attorneys are available to assist.