This week, the U.S. Department of Homeland Security* (DHS) settled a lawsuit against it brought by H-4 and L-2 visa holders. The plaintiffs, requesting class certification, filed suit only about six weeks ago. The judge had yet to certify the class.
Plaintiffs sued DHS for unlawfully refusing:
- To provide automatic work authorization for L-2s or
- To permit H-4 employment based upon a U.S. Citizenship and Immigration Services’ (USCIS) filing receipt for an employment authorization (EAD) renewal application.
USCIS had essentially ground the adjudication process for these EAD applications to a halt.
The previous administration’s policy was a backdoor attempt to make employment for people who are lawfully in the U.S. as spouses of H-1B and L-1 visa holders, as difficult as possible. As a result of this very important lawsuit, that nightmare is over. The Biden administration settled the lawsuit, returning to the lawful and rational policies in place a few years ago.
Companies employing people holding either H-4 or L-2 status can breathe a sigh of relief now—as can these visa holders themselves.
The history behind the lawsuit.
USCIS refused to allow H-4 and L-2 visa holders, who previously had valid work authorization, to continue working without a new card even if they filed their renewal applications on time. Because USCIS often takes more than a year to approve the applications and send out a new card, thousands of companies were losing valued employees for something that USCIS could easily remedy with a simple policy change. They have done this for several other visa categories.
While the government allowed some other visa categories to continue working with an EAD-renewal receipt, it refused to change its policies to allow these two categories of visa holders to work without having the actual EAD card.
The result of the settlement.
Employees waiting for (or planning to renew) an H-4 or L-2 employment authorization card, the settlement is good news. DHS agreed to a settlement that provides for:
- L-2 visa holders to work “incident to status.” This means that they are automatically authorized to work because they hold L-2 status. They will no longer need a separate EAD and will not need to apply for one in the future.
- H-4 visa holders with an expiring EAD card will receive amended receipt notices for pending or new extension applications stating that H-4s are authorized to work within the dates of validity of their I-94 cards.
We will know more details later, but H-4s and L-1s (and their employers) can be very happy about this settlement. Additionally, the settlement will be effective within a few months to give the DHS’ agencies time to revise and implement new procedures.
Completing the I-9.
For I-9 purposes, USCIS will issue new guidance for employers within 120 days of the settlement agreement. Please note the following until it formally issues the new guidance:
- USCIS will amend the language on the receipt notices it currently issues to applicants. The new language will state that H-4 EADs will automatically be extended.
- The extension language grants employment authorization for no longer than the last date of authorized stay listed on the I-94 document. Employees need to provide to the employer all of the following:
- A valid, but expired EAD.
- The H-4’s Form I-94 arrival and departure record.
- A Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.
- L-2 spouses are employment authorized “incident to status.” This means that an L-2 spouse can work simply based upon having L-2 status. The L-2 does not need to apply for a separate EAD.
- L-2 visa holders will be able to obtain a new Form I-94 from Customs and Border Protection (CBP) within 120 days of the date of this settlement.
- CBP will change the I-94 form to note that the bearer is an L-2 spouse.
- The new I-94 form is a List C document for Form I-9 purposes.
We do not yet know the details about how DHS will implement the terms of this settlement. However, for now, use this article as a guide should the issue come up for new or current employees.
*DHS is the umbrella Cabinet-level department which includes the USCIS, ICE, and CBP.