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Major Settlement Changes How USCIS Adjudicates Work Permits for Nonimmigrant Spouses

Shergill, et al. v. Mayorkas class action settlement makes beneficial changes to USCIS’s policy on work authorization rules for spouses of high skilled workers in the United States. H-4 visa holders will qualify for automatic extension of their Employment Authorization Document (EAD) for up to 180 days with a timely filed EAD renewal application. L-2 visa holder spouses will receive work authorization incident to status, meaning they will not need to file a separate work authorization from their L-2 visa. Prior to the settlement, spouses of highly skilled workers were disproportionately disadvantaged by USCIS delays in EAD renewals, some having to stop working while waiting for their renewal card.

AILA Doc. No. 21111002 referenced:

The American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown, celebrate the historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.

Jesse Bless, AILA Director of Federal Litigation stated, “Today marks a historic change for L-2 spouses who will now enjoy work authorization incident to status. AILA’s membership has long advocated for the correct statutory interpretation and we’re delighted to have reached this agreement, which includes relief for H-4 spouses, through our litigation efforts with Wasden Banias and Steven Brown. It is gratifying that the administration saw that settling the litigation for nonimmigrant spouses was something that should be done, and done quickly.”

Jon Wasden stated, “After years of outreach to the agency, it became clear that litigation was unfortunately necessary. Despite the plain statutory language, USCIS failed to grant employment authorization incident to status for L-2s. The other issue relates to H-4s whose work permits expire prior to their H-4 status; this is a group that always met the regulatory test for automatic extension of EADs, but the agency previously prohibited them from that benefit and forced them to wait for reauthorization. People were suffering. They were losing their high-paying jobs for absolutely no legitimate reason causing harm to them and U.S. businesses. So, while I’m glad the agency finally followed the law, it is frankly frustrating that an easily fixable issue took this long to address.”

Provided by:

Ms. Jennifer Dartez

Associate Attorney