CLIENT ALERT: Employment Authorization Settlement

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:

  1. Properly filed an EAD renewal application before expiration of their current EAD;
  2. Have an unexpired Form I-94 showing their H-4 status; and 
  3. Will continue to have H-4 status after expiration of their current EAD. 

USCIS will automatically extend the EADs of these individuals until the earlier of any of the following: 

  1. the end date of their H-4 status as noted on Form I-94; 
  2. approval or denial of the EAD renewal application; or 
  3. 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:

  1. Expired EAD showing category “(c)(26)”; 
  2. 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
  3. An unexpired Form I-94 showing valid H-4 status. 

Please note: Upon 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 settlement agreement also details work authorization for those in valid L-2 status. USCIS plans to issue guidance stating that L-2 beneficiaries are authorized to work incident to their L-2 status.

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:

  1. End date of the Beneficiary’s L-2 status; 
  2. Approval or denial of the Beneficiary’s timely filed I-765 EAD renewal; or
  3. 180 days past the expiry date listed on the L-2 Beneficiary’s EAD.

I-9 Implications

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:

  1. An expired (a)(18) EAD card; 
  2. Form I-797C, Notice of Action for Form I-765 (class “(a)(18)”) showing timely filing of I-765 EAD renewal application; and 
  3. 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:

  1. I-94 end date;
  2. I-765 approval or denial date; or
  3. 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.