On November 10, 2021, U.S. Citizenship and Immigration Services (USCIS) reached a settlement in the class action Shergill v. Mayorkas. As part of the settlement, USCIS agreed to update its policy relating to H-4 and L-2 spousal Employment Authorization Document (EAD) applications, and the settlement terms for H-4 and L-2 applicants have potential I-9 compliance implications for employers.
At the time of the settlement agreement, USCIS’s policy manual had not been updated to implement the terms related to H-4 and L-2 spousal work authorization. Several days after the lawsuit was settled, USCIS issued a policy alert further affirming the terms of the Shergill v Mayorkas settlement agreement. As of now, USCIS’s policy manual has been updated to include the settlement terms related to EAD applications for H-4 and L-2 applicants. While guidance related to H-4 spouses has not changed, there is an update for L-2 spouses who, pursuant to Shergill v. Mayorkas and the terms of the settlement agreement, would receive work authorization incident to L-2 status.
L-2 Spouses
L-2 spouses will be able to complete Form I-9 to verify ongoing employment authorization by presenting a combination of documents to their employers such as:
- an expired EAD card indicating Category A18;
- a Notice of Action (Form I-797C) for Form I-765 with the class requested in the same category as the expired EAD (A18 for L-2 spouses), and showing that the renewal application was filed before the EAD expired; and
- an unexpired Form I-94 reflecting L-2 status.
The current process still requires L-2 spouses to properly and timely file their EAD applications (Form I-765) in order to obtain work authorization “incident to status.” In other words, at this moment in time, it is not enough for an L-2 spouse to hold valid L-2 status and be authorized to work pursuant to that status; a timely-filed EAD application is still required.
USCIS’s reasoning is that the only document issued to L-2 spouses that satisfies Form I-9 requirements is the EAD card itself. Currently, USCIS is in the process of developing an alternative form of documentation for L-2 spouses to “have immediate documentation of their employment authorization upon a grant of … L status.”
USCIS’s proffered solution is to work in conjunction with U.S. Customs and Border Protection (CBP) to modify the current Form I-94 so that it distinguishes employment-authorized L-2 spouses from dependent L-2 children, who are not eligible for work authorization. This modification has not yet been consistently implemented by USCIS and CBP; thus, L-2 spouses must continue to timely and properly file their EAD applications (Form I-765).
Additionally, even after Form I-94 is modified, L-2 spouses who choose to present their modified Form I-94 to employers will still be required to obtain separate identity documents in order to meet Form I-9 requirements.
Note that any such automatic extension of work authorization will terminate automatically on the earlier of:
- the end of the validity period of H-4 or L-2 status, as shown on Form I-94;
- the approval or denial of the application to renew the previous EAD card; or
- 180 days from the date of the expiration of the previous EAD card.
I-9 Implications for Employers
L-2 Spouses
In order to complete Form I-9 and verify ongoing employment authorization, L-2 spouses may present the following combination of documents to their employers, which document the 180-day automatic extension of work authorization:
- an expired EAD card indicating Category A18;
- a Notice of Action (Form I-797C) for Form I-765 with the Class requested in the same category as the expired EAD (A18 for L-2 spouses), and showing that the renewal application was filed before the EAD expired; and
- an unexpired Form I-94 reflecting L-2 status.
Once USCIS and CBP modify the Form I-94, L-2 spouses may present the following combination of documents to their employers, which may document work authorization incident to L-2 status:
- an unexpired Form I-94 reflecting employment authorization as an L-2 spouse; and
- separate identity documents, which also meet Form I-9 requirements.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on its Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
