On November 10, 2021, the Department of Homeland Security reached a settlement agreement that impacts employment authorization for individuals in H-4 or L-2 status.
H-4 BENEFICIARIES: Employment Authorization and Those in H-4 Status
The settlement agreement applies to an H-4 dependent spouse who:
- Properly filed an EAD renewal application before the expiration of their current EAD;
- Have an unexpired Form I-94 showing their H-4 status; and
- Will continue to have H-4 status after the expiration of their current EAD.
USCIS will automatically extend the EADs of these individuals until the earlier of any of the following:
- the end date of their H-4 status as noted on Form I-94;
- approval or denial of the EAD renewal application; or
- 180 days from the EAD expiration date as listed on the card.
Form I-9 for H-4 Employees
To complete Form I-9, employees covered by the settlement agreement can present the following:
- Expired EAD showing category “(c)(26)”;
- Form I-797C, Notice of Action for Form I-765 class “(c)(26)” showing timely filing of the EAD renewal application before expiration of their current EAD card; and
- An unexpired Form I-94 showing valid H-4 status.
Please note: In this case, upon the termination of the EAD automatic extension, employers will need to reverify work authorization.
L-2 BENEFICIARIES: Employment Settlement and Those in L-2 Status
The employment authorization settlement agreement also details work authorization for those who have valid L-2 status. USCIS plans to issue guidance stating that L-2 beneficiaries are authorized to work incident to their L-2 status.
Therefore, For automatic extensions, USCIS will read 8 C.F.R. § 274a.13(d) to mean that any L-2 Beneficiary who timely filed their I-765 EAD renewal application and maintains L-2 status beyond the expiry date of the EAD, qualifies for the automatic extension of their (a)(18) work authorization.
The automatic extension terminates at the earlier of:
- End date of the Beneficiary’s L-2 status;
- Approval or denial of the Beneficiary’s timely filed I-765 EAD renewal; or
- 180 days past the expiry date listed on the L-2 Beneficiary’s EAD.
Within 120 days of the November 10, 2021 settlement, USCIS, in partnership with CBP, will revise Form I-94 to indicate the bearer is an L-2 spouse. This document can then be used as a List C (Documents that Establish Work Authorization) Document for I-9 verification purposes.
Before these changes are implemented, L-2 Beneficiaries can present a combination of documentation to their employer to establish continued work authorization:
- An expired (a)(18) EAD card;
- Form I-797C, Notice of Action for Form I-765 (class “(a)(18)”) showing timely filing of I-765 EAD renewal application; and
- Unexpired Form I-94, Arrival-Departure Record, evidencing the Beneficiary’s valid L-2 status.
Please note: employers must reverify the Beneficiary’s work authorization at the earlier of:
- I-94 end date;
- I-765 approval or denial date; or
- 180 days past expiry date listed on L-2 Beneficiary’s EAD.
It is unclear whether automatic EAD extensions will apply to individuals who filed an H-4 or L-2 extension and EAD renewal and whose H-4 or L-2 status subsequently expired. We are prepared to argue that automatic EAD extensions apply to such individuals because they remain lawfully present in the United States while their H-4 or L-2 renewal application is pending.