Categories Department of State News & Updates USCIS

Employment for spouses gets major win today

Today, fifteen nonimmigrant plaintiffs reached a settlement agreement with the Department of Homeland Security in a putative class action over long-delayed processing of H-4 and L-2  employment authorization documents (EADs).

 

The settlement agreement contains two key changes for H-4 and L-2 work authorization:

 

The first major victory is for automatic extension of EAD based on a timely filed extension. Qualifying H-4 nonimmigrants who timely file I-765 extension applications and will continue to have H-4 status beyond the expiration date of their EADs will now have their employment authorization automatically extended. The auto-extension of employment authorization will end once the nonimmigrant’s H-4 status expires according to their Form I-94; once the I-765 application is approved or denied; or 180 days from the expiration date on the face of the EAD.

 

To complete the I-9, qualifying H-4 nonimmigrants may provide a combination of documents in lieu of an unexpired EAD, including an expired EAD, I-765 receipt notice evidencing timely filed application, and unexpired Form I-94.

 

Within 120 days, U.S. Citizenship and Immigration Services (USCIS) will amend I-765 receipt notices to detail the EAD auto-extension eligibility for qualifying H-4 nonimmigrants.

 

The second major victory is that USCIS will issue guidance stating that L-2 spouses will have work authorization incident to status. Within 120 days, U.S. Customs and Border Protection (CBP) will change the Form I-94 to mention L-2 spouse where appropriate. Once CBP updates the Form I-94, it will be available for use as a List C document for I-9 purposes.

 

Further, L-2 spouses who timely file I-765 extension applications and will continue to have L-2 status beyond the expiration date of their EADs will have their employment authorization automatically extended. The auto-extension will end once the nonimmigrant’s L-2 status expires according to their Form I-94; once the I-765 application is approved or denied; or 180 days from the expiration date on the face of the EAD.

 

To complete the I-9, L-2 spouses may provide a combination of documents in lieu of an unexpired EAD, including an expired EAD, I-765 receipt notice evidencing timely filed application, and unexpired Form I-94.

 

USCIS will issue further guidance to employers and benefit granting agencies. Graham Adair will monitor the situation closely for developments. If you are an L-2 or H-4 spouse with a pending I-765 application and you have questions about the implications of the settlement agreement on your EAD processing, please reach out to the Graham Adair attorney handling your case.

 

Please contact your Graham Adair attorney with any specific questions, or contact us at info@grahamadair.com; +1 408 715 7067.

Categories Compliance News & Updates USCIS

I-9 Update: I-797 Approvals Can Be Accepted in Lieu of EAD Cards

Citing COVID-19, USCIS has been experiencing significant delays in issuing EAD cards. USCIS has therefore announced that I-797 approvals with a notice of action date from December 1, 2019 to August 20, 2020 are acceptable as documentation to satisfy work eligibility for I-9 purposes.

 

Employers should note that I-797 approvals can only be used to satisfy work eligibility, and not identity. If an I-797 approval is used for work eligibility, the employee must also present a List B document to prove identity. By December 1, 2020, employers must re-verify any employee who presented an I-797 approval.

 

We will continue to provide updates on changes to the I-9 process due to the pandemic. In the meantime, please contact your Graham Adair attorney with any questions.