On November 10, 2021, a settlement was issued in a case against the U.S. Department of Homeland Security that will now permit nonimmigrant H-4 and L-2 spouses to have automatic extensions of their Employment Authorization Documents (“EAD”) due to lengthy delays in processing by U.S. Citizenship and Immigration Services (“USCIS”). This settlement also will lead to dependents of L and E foreign nationals having work authorization incidents to their status.
Earlier this year a class action lawsuit was brought against the U.S. Department of Homeland Security by H-4 and L-2 spouses who have been harmed by the lengthy USCIS processing times. The complaint alleged that USCIS policies and processing delays have forced tens of thousands of nonimmigrant H-4 and L-2 spouses out of employment by creating gaps in their work authorization. The lawsuit also alleged that, per regulation, L-2 and E spouses are authorized to work incident to status and should not be required to apply for a separate EAD for employment.
Currently, dependents of H-1B and L-1 temporary workers who hold an H-4 or L-2 EAD are required to cease employment when their EAD expires, even when they have timely filed for an extension. Official USCIS posted processing times for these applications currently range from 10 to 15 months which has left these foreign national workers without work authorization for months before they can obtain a new EAD from USCIS. This has been extremely detrimental for both the foreign national employees and their employers.
The new USCIS policy guidance issued November 12 provides the following:
- “[C]ertain H-4, E, or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly filed an application to renew their H-4, E, or L-based EAD before it expires…”
- “[T]he automatic extension of the EAD will continue until the earlier of: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD.”
- “E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD.”
This settlement is a step in the right direction to avoid gaps in work authorization for foreign national workers as well as to maintain continuity in their employer’s ability to provide services. If you have any questions as to whether this applies to your current foreign national employees working pursuant to an H-4 EAD or L-2 EAD, please reach out to your Hall Render immigration team.
- Lindsay C. Ramsey at (317) 429-3637 or lramsey@hallrender.com;
- Charlotte M. Fillenwarth at (317) 977-1476 or cfillenwarth@hallrender.com;
- Michael L. Kim at (317) 977-1418 or mkim@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
