Business Immigration Insights

On November 12, 2021, in settling a federal lawsuit pending since March, US Citizenship & Immigration Services agreed to two significant changes that will have a major impact on the lives of nonimmigrant workers and their families in the US.

What Was the Lawsuit About?

Shergill v. Mayorkas, a class-action lawsuit filed in the Western District of Washington, challenged USCIS on two policies that have wreaked havoc on the earning power of these families during the pandemic.

The first policy was to require the spouses of workers on E and L visas to apply for separate work permits, even though regulations say these spouses are authorized to work “incident to status” and need no further permission.

The second was to deny these spouses, and the spouses of H-1B workers, an automatic extension of their work permits while their renewals were pending, even though others were eligible for such extensions.

Since USCIS currently takes more than a year to process renewals, and those renewals cannot be filed until six months before the current permit expires, these two policies, combined, have all but guaranteed that E, L and H spouses would lose their jobs – and tens of thousands have.

What Did the Settlement Do?

As a result of the Settlement Agreement, USCIS updated its Policy Manual to make two significant changes:  (1) declaring it now considers E and L spouses employment authorized incident to status; and (2) adding E, L and H spouses to the list of categories that are eligible for an automatic extension of an expired Employment Authorization Document (EAD).

The second change is immediately effective.  Theoretically, the first change should mean that E/L spouses can now work based solely on their I-94 admission record (showing E-2 or L-2 status) and no longer require EADs at all.  In reality, however, this change is not immediately effective and depends on USCIS and US Customs & Border Protection working together to update the digital I-94 system.

What does “automatic extension” mean?

An automatic extension of your employment authorization means you remain legally authorized to work despite the fact that your EAD card has expired.

How do I know if I qualify for the automatic extension?
You qualify if you meet all of the following conditions:

1. You have filed an I-765 application to renew your EAD; and
2. Your renewal is in the same category as your current EAD; and
3. You filed the application before your current EAD expired; and
4. You have an unexpired I-94.

How long does my automatic extension last? Does it ever expire?

The automatic extension is valid for 180 days after the date your current EAD expires; or to the date your I-94 expires, whichever is earlier. Once USCIS approves the I-765 application and issues your new EAD, your employment authorization will expire on the date listed on the new card.

How can I prove to my employer that I have an automatic extension?
To verify you are eligible to work, your employer can accept the following documents combined:

1. Your expired EAD in the A17 (E-2 or E-3 spouse), A18 (L-2 spouse), or C26 (H-4 spouse) category; and
2. The Form I-797 Receipt Notice for your pending I-765 application, which must list the same category as your expired EAD and must show a Received Date before your EAD expires; and
3. An unexpired I-94 record showing your current status as an E, H or L derivative.

What if I do not have a pending I-765 application, but do have a valid I-94 showing E or L dependent status?  Can I work based on the “incident to status” policy with just my I-94?

No, not yet.  Current I-94 records do not distinguish between the spouses and the children of E and L workers.  Children are not authorized to work incident to status, but spouses are.  Under the Shergill Settlement Agreement, USCIS and CBP are required to update the I-94 system to document this distinction so that employers will be able to accept an I-94 alone to verify employment eligibility for a work-authorized spouse.

I am an E/L spouse.  When can I stop applying for EADs?

That is unclear at this time.  The Shergill Settlement Agreement requires the agencies to create the new “spousal I-94” form within 120 days of the settlement date.  That deadline is March 12, 2022.  The Settlement does not address whether there will be a process for updating already issued I-94 records.  We will update this post as soon as additional information becomes available.  As of the date of this posting, E and L spouses must still obtain an EAD card by filing an I-765 application before legally working in the United States.

I am an H-4 spouse.  When can I stop applying for EADs?

You cannot.  Unlike E and L spouses, H-4 spouses are not authorized to work incident to status and must always have an EAD in order to be employed in the United States.  This includes self-employment and independent contract work.  However, as explained above, you now have the benefit of the EAD automatic extension.

For more information on this topic, please contact your Hunton Andrews Kurth immigration team.