Work Authorization Win for Derivative Beneficiaries – Shergill Settlement to Change H-4 and L-2 EAD Requirements

Depending on class of admission, certain noncitizens may be authorized to work in the United States, pursuant to nonimmigrant visa status. Spouses of L-1A and H-1B visa holders are considered “derivative beneficiaries” and their status runs concurrently to the status of the primary beneficiary spouse.  By statute, L-2 spouses are authorized for employment incident to status, thus they are not required to apply for an employment authorization document (“EAD”) prior to accepting employment in the U.S. However, previously, the instructions for Form I-765 (the application for employment authorization documents) indicated L-2 spouses must apply for an EAD, pay the $410 filing fee to the United States Citizenship and Immigration Services (“USCIS”), and wait for receipt of an EAD prior to accepting employment. This process was taking up to 14.5 months, depending on the service center processing the application. Unlike the L-2, H-4 spouses are required to apply for employment authorization and an EAD prior to accepting employment in the U.S., pursuant to applicable regulations.

Filed I-765 applications commonly face extreme processing delays as individual H-4 and L-2 visa holders wait for their applications to be adjudicated, resulting in gaps in work authorization and employment, creating severe consequences for not only the visa holders, but the employers who either risk employing individuals without proper work authorization and documentation or losing the workers.

In September 2021, a class action lawsuit Shergill v. Mayorkas was initiated on behalf of plaintiffs with H-4 or L-2 status lasting longer than their initial work authorization, and each individual being required to file for an EAD extension prior to the expiration of their initial work authorization (and without seeking an additional extension of their H-4 or L-2 status). On November 10, 2021, the parties Shergill v. Mayorkas reached a settlement agreement. Pursuant to the executed settlement, L-2 visa holders are now authorized to work incident to status, and they will not be required to file for an EAD; they will instead be issued new I-94 documents which document their L-2 visa status and can be used for Form I-9 verification process. It is expected these documents will be issued within 120 days. Additionally, individuals with valid H-4 status who timely file EAD renewal applications and continue to maintain H-4 status beyond the expiration of their EAD qualify for the automatic extension of their employment authorization and EAD. This automatic extension also applies to L-2 visa holders with current employment authorization and EAD documentation.

This outcome will substantially decrease the burden of EAD renewals on USCIS – which will allow USCIS offices and their staff to devote resources to other severely backlogged petitions. Davis & Campbell will continue to monitor the situation and will provide further updates upon release of further USCIS guidance regarding H-4 and L-2 derivative beneficiaries.  If you have any questions regarding H-4 and L-2 visas, please contact David Lubben or Carli Smith.