U.S. Citizenship and Immigration Services (USCIS) is expected to release new guidelines for employment authorization which will affect H-4 and L-2 spouses resulting from a settlement agreement reached in a federal court lawsuit. The case, Shergill et al. v. Mayorkas (21-cv-1296-RSM), affects the ability to work for the spouses of H-1B and L1 visa holders under certain conditions.
Certain nonimmigrant spouses of principal visa holders are permitted to apply for employment authorization in the United States, so long as the principal visa applicant maintains their nonimmigrant visa status, continues to comply with terms of the visa issued to them and conforms to the employment authorization representations made to U.S. consular officials to secure the visa. Due to a variety of factors, over the past three years, processing of employment authorization requests by the spouse of L1 and H-1B visa holders has become extremely backlogged and what would generally be an expected turnaround of 3-4 months has turned into an eight to twelve month delay, thus deleteriously affecting the ability of the spouse to work in the United States as well as depriving U.S. employers of the ability to employ such individuals.
Specifically, the agency has agreed, pursuant to the settlement agreement -
L-2 Visa Holders -
H-4 Visa Holders –
· The end date of the H-4 status as determined by the expiration date on the I- 94 document
· The approval or denial of the EAD application, or
· 180 days from the expiration date of the current EAD document.
The settlement agreement is most welcome news for those L-2 and H-4 spouses who have been in a long queue waiting for employment authorization documents to be issued. The issuance of formal guidance from USCIS is expected to clarify and answer all questions arising from the federal court order. Most interesting is that this settlement agreement did not cover the E-2 spouse/visa holder who is also employment-authorized and in many circumstances holds priority over the L or H visa designate, as the “E” visa classification was historically considered a quasi-diplomatic status.
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