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Court Rules in Favor of L-2 and H-4 EAD

On September 23, 2021, Plaintiffs filed a putative class action alleging, pursuant to the Administrative Procedure Act (“APA”), that USCIS unlawfully withholds employment authorization incident to status to L-2 Plaintiffs. The suit also alleged that USCIS unlawfully withholds automatic extensions of employment authorization for H-4 Plaintiffs.

The court’s decision issued on November 10, 2021, states the following:

H-4 Nonimmigrants Receive EAD

USCIS will interpret 8 CFR § 274a.13(d) such that certain H-4 nonimmigrants who timely file their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(26)-based employment authorization and EADs. Such auto-extensions terminate the earlier of the end date of the individual’s H-4 status as noted on Form I-94, the approval or denial of the Form I765 EAD renewal application, or 180 days from the “Card expires” date on the face of the EAD. Such guidance will state that EAD auto-extensions apply to qualifying H-4 nonimmigrants who continue to have H-4 status after their (c)(26) EAD expires. Within 120 days of the Effective Date, USCIS will amend the receipt notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.

L-2 Nonimmigrants Receive EAD

USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes. USCIS will interpret 8 CFR § 274a.13(d) such that certain L-2 nonimmigrant spouses who timely file their I-765 EAD renewal applications and continue to have L-2 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(18)-based EADs. The auto-extension would terminate the earlier of the end date of the individual’s L-2 status, the approval or denial of the I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD. USCIS will issue appropriate guidance to employers and benefit granting agencies to state that EAD auto-extensions apply to L-2 nonimmigrants who continue to have L-2 status after their (a)(18) EAD expires.

For more details on this settlement see Shergill v. Mayorkas, No. 21-1296 (W.D. Wash.).

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