November 27, 2022

Volume XII, Number 331


H-1B, L-1 Update: USCIS Adopts Policy Changes

Nonimmigrant spouses of H-1B and L-1 visa holders with long-pending EAD applications have finally received some relief. Based upon a settlement in Shergill v. Mayokas, USCIS is making major policy changes. Going forward, certain H-4 spouses with pending EAD applications will be entitled to 180-day automatic extensions of their EAD cards and L-2 spouses will no longer need EADs, they will have employment authorization incident to their L-2 status.

H-4 dependent spouses qualify for the 180-day automatic extension if:

  • The EAD renewal application is filed before the current EAD expires; and

  • The applicant’s Form I-94 Arrival/Departure Record shows unexpired H-4 status beyond the EAD expiration date.

The 180-day automatic extension will expire the earlier of:

  • The end of the applicant’s H-4 status as noted on their Form I-94;

  • The approval or denial of the Form I-765 renewal application; or

  • 180 days from the expiration date on the face of the current EAD.

With respect to Form I-9, Employment Eligibility Verification:

  • USCIS will issue specific guidance; basically, the employee will have to present the expired EAD, the I-797 receipt notice showing a timely filed renewal application, and an unexpired I-94 showing valid H-4 status.

  • Within 120 days, USCIS will start issuing receipt notices that detail the EAD automatic extension.

For L-2 dependents:

  • USCIS will issue policy guidance indicating that L-2 spouses are employment-authorized incident to status.

  • Within 120 days, in cooperation with Customs and Border Protection, USCIS will change the Form I-94 to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for I-9 purposes.

  • Until the Form I-94 is changed, L-2 spouses who timely file EAD renewal applications and have L-2 status beyond the EAD expiration date will be entitled to the same 180-day automatic extension that will apply to H-4 spouses.

As noted, these extensions will only help applicants who have valid H-4 or L-2 status that extends beyond the expiration dates of their current EADs. Applicants with pending H-4 extensions, however, may be able to take advantage of the automatic extensions if their spouses’ H-1B statuses have already been extended and they can leave the United States and extend their H-4 status by re-entering.

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 315

About this Author

Michael H. Neifach Jackson Lewis Employment visa Lawyer border security matters attorney

Michael Neifach is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is a recognized leader on immigration, visa and border security matters, and he is Co-Leader of the firm's Immigration practice group.

Mr. Neifach has held senior positions at the White House Homeland Security Council, U.S. Department of Homeland Security, and U.S. Immigration and Customs Enforcement (ICE). He served as General Counsel at ICE from July 2007 through January 2009. Following his government service, Mr. Neifach oversaw...

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Otieno B. Ombok, Jackson Lewis, I9 Compliance Lawyer, immigrant visa petitions Attorney

Otieno B. Ombok is a Principal in the White Plains, New York, office of Jackson Lewis P.C.

Mr. Ombok specializes in all aspects of employment-based non-immigration and immigrant visa petitions. He also advises on I-9 compliance issues as well as outbound immigration matters. He has a natural facility in addressing client issues such advises both U.S. and foreign employers with regard to immigration matters. He has a natural facility in addressing client issues pertaining to healthcare visas for medical professionals,...

Amy Peck Immigration Attorney Jackson Lewis

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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