On 11/10/2021 we announced major changes to H-4 and L-2 EADs as the result of a settlement in litigation brought against the USCIS. Today additional details have been provided regarding the settlement agreement.
H-4 EADs
H-4 nonimmigrants who timely file their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(26)-based EADs.
Such auto-extensions terminate the earlier of:
- The end date of the individual’s H-4 status as noted on Form I-94,
- The approval or denial of the I-765 EAD renewal application, or
- 180 days from the “Card Expires” date on the face of the EAD.
NOTE: In its current form, it appears that the automatic H-4 EAD extension will only apply to individuals who continue to be in valid H-4 status after their EADs expire. As written in the settlement agreement, the automatic extension would not apply in situations in which an individual's H-4 and EAD applications expire at the same time and are renewed concurrently. If this is, indeed, how this change will be implemented a strategy to address this would be to have the H-4 spouse depart the U.S. and apply for a new H-4 visa after the H-1B spouse's status has been extended. The H-4 spouse would then make a new entry to the U.S. to obtain an I-94 with an expiration date that coincides with the H-1B spouse's extension, and subsequently apply for the H-4 EAD renewal.
By 3/10/2022, USCIS will amend the I-765 receipt notice to detail the EAD auto-extension eligibility based on the validity period provided on the I-94 in combination with the expired EAD and the I-765 receipt notice (Form I-797C) for a timely-filed I-765 EAD renewal application.
L-2 EADs
By 3/10/2022, USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with U.S. Customs & Border Protection (CBP), will change the I-94 to indicate that the bearer is an L-2 spouse (as opposed to an L-2 child) so that the I-94 can be used as a List C document for I-9 purposes. This means that the I-9 form will also be updated over the next few months.
Until the Form I-94 is changed to identify that the bearer is an L-2 spouse for I-9 purposes, USCIS will consider that L-2 nonimmigrant spouses who timely file their I-765 (EAD) renewal applications and continue to have L-2 status beyond the expiration date of their EAD qualify for the automatic extension of their (a)(18)- based EADs.
Such auto-extensions terminate the earlier of:
- The end date of the individual’s L-2 status,
- The approval or denial of the I-765 EAD renewal application, or
- 180 days from the “Card Expires” date on the face of the EAD.
