Good news for spouses E, H and L
On November 12, 2021, settling a federal lawsuit that has been ongoing since March, the United States Citizenship and Immigration Services agreed to two important changes that will have a major impact on the lives of non-immigrant workers and their families in the United States. United States.
What was the trial about?
Shergill v. Mayorkas, a class action lawsuit filed in the Western District of Washington, challenged USCIS over two policies that wreaked havoc on these families’ incomes during the pandemic.
The first policy was to require spouses of workers with E and L visas to apply for separate work permits, even though regulations state that these spouses are allowed to work “because of their status” and do not need to work. another authorization.
The second was to deny these spouses, and the spouses of H-1B workers, an automatic extension of their work permits while their renewals were pending, even if others were eligible for such extensions.
Since USCIS currently takes over a year to process renewals, and these renewals can only be filed six months before the current license expires, these two policies, combined, have virtually guaranteed that Spouses E, L and H would lose their jobs – and tens of thousands have.
What did the regulation do?
As a result of the settlement agreement, USCIS updated its policy manual to make two significant changes: (1) state that it now considers employment of Spouses E and L to be permitted based on status ; and (2) adding spouses E, L and H to the list of categories eligible for an automatic extension of an expired employment authorization document (EAD).
The second change is immediately effective. Theoretically, the first change should mean that E / L spouses can now work solely on the basis of their I-94 admission record (showing E-2 or L-2 status) and no longer need any drafts at all. ‘EAD. In reality, however, this change is not immediately effective and depends on the cooperation of USCIS and US Customs & Border Protection to update the digital I-94 system.
What does “automatic extension” mean?
An automatic extension of your work authorization means that you remain legally authorized to work despite the expiration of your EAD card.
How do I know if I am eligible for the automatic extension?
You are eligible if you meet all of the following conditions:
You have filed an I-765 request to renew your EAD; and
Your renewal is in the same category as your current EAD; and
You filed the request before your current EAD expired; and
You have an unexpired I-94.
How long does my automatic extension last? does it ever expire?
The automatic extension is valid 180 days after the expiration date of your current EAD; Where on the expiration date of your I-94, whichever comes first. After USCIS approves the I-765 application and issues your new EAD, your work authorization will expire on the date shown on the new card.
How can I prove to my employer that I have an automatic extension?
To verify that you are eligible to work, your employer may accept the following documents combined:
Your expired EAD in category A17 (spouse E-2 or E-3), A18 (spouse L-2) or C26 (spouse H-4); and
The receipt notice of Form I-797 for your pending I-765 application, which must list the same category as your expired EAD and must indicate a date of receipt before your EAD expires; and
An unexpired I-94 record showing your current status as an E, H, or L derivative.
What if I don’t have a pending I-765 application, but I have a valid I-94 showing dependent E or L status? Can I work on the “incident to status” policy basis with only my I-94?
No not yet. The current I-94 records do not distinguish between the spouses and children of workers E and L. The children are not allowed to work because of his status, but the spouses are. Under the Shergill The Settlement Agreement, USCIS, and CBP are required to update the I-94 system to document this distinction so that employers can accept an I-94 alone to verify a job eligibility. spouse authorized to work.
I am an E / L spouse. When can I stop requesting EADs?
It is not clear at the moment. The Shergill The settlement agreement requires agencies to create the new “Joint I-94” form within 120 days of the settlement date. This delay is March 12, 2022. The Regulations do not specify whether there will be a process for updating I-94 registrations already issued. We will update this post as more information becomes available. As of the date of this publication, Spouses E and L must still obtain an EAD card by filing an I-765 application before legally working in the United States.
I am an H-4 spouse. When can I stop requesting EADs?
You can not. Unlike spouses E and L, spouses H-4 are not authorized to work due to his status and must still have an EAD to be employed in the United States. This includes self-employment and self-employment contract work. However, as explained above, you now benefit from the EAD automatic extension.
Courtland C. Witherup also contributed to this article.
Copyright Â© 2021, Hunton Andrews Kurth LLP. All rights reserved.Revue nationale de droit, volume XI, number 323