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.

Background

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 -

• L-2 visa holders should be work authorized incident to their status based upon the validity of an I-94 which would evidence that the L-2 visa designate is the spouse of an L-1 nonimmigrant.
• The I-94 for the L-2 visa holder would be deemed as a List C document for Form I-9 purposes so long as it identifies the L-2 visa holder as the spouse of an L-1 visa designate.
• Currently, L2 I94 visa holders are not designated as the spouse of an L-1 visa holder, and per the settlement agreement, USCIS will introduce procedures to indicate this designation pursuant to the federal court lawsuit and settlement agreement.
• L-2 visa holders who currently hold an I-94 due to their spousal status may continue to require an EAD for work purposes until the I-94 with spousal designation is issued after reentry to the United States or similar active designation by USCIS. How this will be accomplished has yet to be determined.
• There is an ‘auto-extension’ policy for L-2 visa holders who might need to renew employment authorization documents which will be analogous to the H-4 visa designation and requires that the L-2 applicant maintain status as L-2 beyond their current Employment authorization document (EAD) to qualify for such status.

H-4 Visa Holders –

• H-4 visa holders who both timely file employment authorization document renewal requests and continue to hold H-4 status beyond their current employment authorization document expiration date will qualify for automatic extensions of employment authorization for up to 180 days. The length of an extension of employment authorization will be the earlier of:

· 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.