As a result of a lengthy lawsuit, the USCIS willlower thehurdles for some H-4 and L-2 spouses. The lawsuit, Shergill et al, v Mayorkas, challenged the extensive
processing times for H-4 and L-2 spousal work permits (EADs). Overall, the settlement offers stronger benefits to L-2 spouses, but doesaccommodate for some of the H-4 spouse EAD challenges.

How Does Shergill Affect H-4 Spousal EADs?

H-4 spouses who have a timely filed EAD renewal and have additional time in H-4 status on their I-94 beyond the expiration date of their EAD will qualify for an automatic extension. The length of the extension will be the earliest of the following dates:

  1. The end of the H-4 spouse’s H-4 status that is shown on their I-94;
  2. The approval or denial of the H-4 spouse’s EAD application; or
  3. 180 days from the H-4 spouse’s current EAD expiration date.

How Does Shergill Affect L-2 Spousal EADs?

L-2 spouses will now be allowed to work upon entry to the US by showing their current I-94. Historically, an L-2 spouse must have entered the U.S. and then applied for an EAD. Once the EAD was approved and in-hand, the L-2 spouse could begin work. Under Shergill, L-2 spouses will be able to work immediately upon entry by showing their I-94 record. This will require Custom and Border Protection to issue I-94s with specific L-2 spouse categorization so as to differentiate an L-2 spouse from and L-2 child. When presenting documents to an employer for purposes of Form I-9, the I-94 will function as a List C document. L-2 spouses already present in the U.S. at the time of the settlement without a valid EAD will still need an EAD to work before they can be issued one of the new I-94s. For L-2 spouses who do not have the new I-94 indication and are filing for a renewal of their EAD, there is the option of an automatic extension. L-2 spouses who have a timely filed EAD renewal and have additional time in L-2 status on their I-94 beyond the expiration date of their EAD will qualify for an automatic extension. The length of the extension will be the earliest of the following dates:

  1. The end of the L-2 spouse’s L-2 status that is shown on their I-94;
  2. The approval or denial of the L-2 spouse’s EAD application; or
  3. 180 days from the L-2 spouse’s current EAD expiration date.

Will the Shergill Settlement Actually Make A Difference?

Overall, the Shergill settlement is great news for L-2 spouses and underwhelming news for H-4 spouses. L-2 spouses will be allowed to circumvent the extremely long EAD processing times and begin work immediately upon obtaining L-2 spousal status. This is especially beneficial for L-2 spouses who were admitted to the U.S. using a company’s Blanket Approval Notice, as they will be allowed to enter the U.S. without having to deal with USCIS processing times. L-2 spouses in the U.S. and looking to file an extension will need to file their I-539s as early as possible so as to prevent a work gap, as processing times for I-539s continue to be extensive. H-4 spouses, however, must still contend with long EAD processing times and, as a result, face the strong possibility of work gaps. H-4 spouses whose EADs were “shorted” and given less time than the expiration date of their I-94 will benefit financially from having to file multiple EAD renewal applications. The Shergill settlement does not address the larger issue of extremely long processing times and lack of work force at the USCIS to approve EAD petitions.

Our firm will continue to follow this development closely. If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

This blog is made available by the The Immigration Group, PC for educational purposes only in order to give you general information and a general understanding of the law, not to provide specific legal advice. For legal advice, please contact an attorney directly.

Victoria Gentry is the Managing Attorney with The Immigration Group, P.C. practicing exclusively in the areas of work visas and employment-based green cards. She enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance. She is a graduate of Belmont University College of Law and the Nashville Bar Foundation Leadership Forum.