The Department of Homeland Security (DHS) has now agreed to a settlement after the American Immigration Lawyers Association (AILA) and Partners, filed a Federal Lawsuit claiming, that the prohibition on qualifying H-4 and L-2 applicants benefits from the 180-day extension, was unlawful.
For details of our original article please click the following link:
The details of the settlement are as follows:
Automatic Renewals of Employment Authorization for applicants with valid H-4 status
H-4 Applicants who timely file their EAD renewal applications and continue to have H-4 status beyond the expiration of their EAD will qualify for the automatic extension of their (c)(26) based employment authorization. However, the automatic extension will terminate the earlier of the following events:
- at the end of the individual’s H-4 status as per their I-94;
- the approval/denial of the I-765 application; or
- 180 days from the expiration date on their existing EAD card.
While obviously a great win for the Immigration Community at large, a lot of applicants tend to file their H-4 Extension and EAD applications at the same time. The 180- day extension would only apply if the applicant has a valid H-4 status. If their H-4 status expires shortly after filing the I-539 and I-765 then the automatic extension would end based of their I-94 expiring.
However, as processing times for H-4 are now faster, if the next H-4 is approved before the expiration of their current one the automatic extension of EAD would continue for 180 days, unless the I-765 is adjudicated prior to that. The main takeaway from this settlement is to ensure you don’t wait until the last minute to file the H-4 extension and EAD, otherwise, you will not get the benefit of the 180-day extension. Filing the H-4 extension along with the H-1B in premium processing, as early as possible, will give you the best chance to ensure you still have H-4 status beyond the expiration of your current EAD.
For I-9 purposes applicants may present an expired EAD and receipt notice for a timely filed I-765 indicating class (c)(26) and a valid I-94 showing continuing H-4 status.
Employers/employees need to remember that the 180-day extension will not apply if the applicant’s H-4 status is expired.
Employment Authorization incident to L-2 status and automatic extensions of EADs
Possibly the biggest win in this settlement is the fact that L-2 applicants will be authorized to work based on having L-2 status, without the need to file for separate work authorization. USCIS will update their website so that an L-2 spouse can use their I-94 as an acceptable List C document for I-9 purposes. However, until Form I-94 is changed to indicate that the bearer is an L-2 spouse for I-9 purposes, it will not be sufficient for employment authorization. It is not clear when USCIS will make this change.
Furthermore, L-2 applicants who timely file an EAD renewal application and continue to have L-2 status beyond the expiration of their current EAD will qualify for the 180-day automatic extension. The same rules which apply to H-4 (listed above) will also be applicable to the expiration of the 180-day extension for L-2 applicants.
In both instances, employers will need to ensure that they are reverifying work authorization at the earlier date of either the I-94, the adjudication of the I-765 or on the 180th day.
Despite the terms of the settlement USCIS denies unlawfully withholding employment authorization to qualifying H-4 and L-2 spouses. Hardly surprising.
It will be necessary to wait until USCIS provides further guidance on their website regarding the above matters. If you have questions in the meantime, please schedule a call with PLG Partner and Immigration Attorney Chris Prescott. We can be contacted at firstname.lastname@example.org.