Changes to EAD Processes for Certain Nonimmigrant Spouses

On November 10, 2021, the American Immigration Lawyers Association announced that their case, Shergill et al. v. Mayorkas, had resulted in a settlement with USCIS. The case involved spouses of nonimmigrant visa holders suing USCIS over delays in employment authorization document (“EAD”) issuance. Joseph and Hall, in collaboration with Immpact Litigation, has recently initiated a similar lawsuit over EAD delays.

Following this announcement, USCIS released a policy alert on November 12, 2021 stating the changes to procedure for H-4, E, and L nonimmigrant dependent spouses.

H-4 visas are issued to the spouses of temporary workers in the United States, including H-1B and H-1B1 specialty occupation holders, H-2A temporary agricultural workers, H-2B temporary non-agricultural workers, and H-3 trainees or special education exchange visitors. H-4 visa holders are required to file a Form I-765, Application for Employment Authorization, and obtain an EAD before they are authorized to work in the United States. These EADs are only valid for one year.

Many EAD holders are eligible for an automatic 180-day extension of their EAD so long as they are still in lawful status and they filed their EAD renewal application prior to its expiration. With mounting delays in EAD processing times, this automatic extension proved vital for countless individuals to be able to continue working the United States. However, H-4 visa holders were not eligible for the automatic extension and many were losing work authorization in the United States despite timely filing for a renewal and maintaining lawful status. As a result of the Shergill settlement, the automatic extension will now be given to H-4 visa holders as well.

USCIS also updated their procedure for the spouses of E-visa and L-visa holders. These visa categories include treaty traders, treaty investors, Australian specialty occupations, intracompany managerial or executive transfers, and intracompany specialized knowledge employee transfers. Following the settlement, not only will USCIS deem E and L spouses eligible for the automatic EAD extensions, but they will also consider them authorized to work incident to status. This means that neither E nor L spouses will be required to file Form-765 and obtain an EAD in the first place. This finally marks an alignment between USCIS and the Immigration and Nationality Act which stated “the Attorney General shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘employment authorized’ endorsement or other appropriate work permit.” 8 USC § 1184(c)(2)(E), (e)(2) (emphasis added).

USCIS is still working with Customs and Border Protection to figure out the best way to provide E and L spouses documentation to prove their employment authorized status to employers. Current plans seem to involve a reissuance of I-94s with additional indications to demonstrate employment authorization. We will keep you updated as more information becomes available.

If you have questions about whether you still require employment authorization to work in the United States, please schedule a consultation with us today.