DHS ENTERS INTO EAD SETTLEMENT WITH H-4 AND L-2 SPOUSES

On Nov 10, 2021 - The Department of Homeland Security (DHS) and USCIS entered into a settlement agreement as a result of litigation which provides some relief to H-4 and L-2 spouses and their applications for employment authorization.

The settlement provides structural changes for nonimmigrant H-4 and L-2 spouses who have experienced delayed processing times for their EAD applications.

 

The highlights from the settlement are:

  • Automatic extension (until the end date of the individual’s H-4 status, 180 days from the EAD expiration date, or whichever is earlier) of employment authorization for H-4 spouses who timely filed their renewal applications.
  • Work authorization for L-2 spouses without needing to apply for an EAD.

The settlement does not address work authorization for E-3, E-2, and J-2 dependents, and it remains to be seen

 

1) how USCIS will implement these changes,

2) how long it will take for them to do so; and

3) how USCIS will process the backlogged EAD applications.

 

Under the terms of the settlement agreement, within 120 days, USCIS will amend the receipt notices issued for EAD extensions to indicate that timely filed H-4 EAD extensions are deemed to automatically extend the EAD for 180 days from the “card expires” date on the face of the EAD. 

One limitation on this is that the automatic extension cannot go beyond the expiration date of the individual’s H-4 status. This is a reversal of previous USCIS policy that prohibited H-4 spouses from benefitting from automatic extension provisions which apply to certain other types of EAD applicants.

For L-2 spouses, under the terms of the settlement, USCIS will issue additional guidance clarifying that L-2 spouses are authorized to work simply by virtue of their L-2 status (“incident to status”), meaning that these individuals are no longer required to apply for EADs prior to working in the United States.

While this settlement does not directly reduce USCIS EAD processing times, it does significantly decrease the burden of the USCIS processing delays for H-4 and L-2 spouses. Additional litigation regarding E-2 EAD processing delays and Adjustment of Status (AOS) EAD processing delays is currently pending.