On Wednesday, November 10, 2021, the Department of Homeland Security entered into a settlement agreement over a lawsuit concerning work authorization of H-4 and L-2 spouses. At first glance it sounds like a watershed moment. On closer examination, the settlement doesn’t offer much.
The two key issues in the court case from the U.S. District Court in Seattle were whether H-4 and L-2 spouses can benefit from the automatic 180-day extension of work authorization when they submit applications to renew their Employment Authorization Documents (EADs), and whether L-2 spouses even need to apply for EADs to accept employment. The answers are yes and no, respectively. The settlement extends the 180-day automatic extension provision only if the H-4 or L-2 status will remain valid during the 180-day period after the current EAD expires. For L-2 spouses, the settlement confirms an existing interpretation of the relevant federal statute that indicates that L-2 spouse are authorized to work based upon their L-2 status alone, i.e. being present in the United States after entering the country with an L-2 visa.
The reason the settlement does not offer much to H-4 and L-2 spouses is that their EADs in most cases are valid based upon their H-4 or L-2 status. H-4 and L-2 spouses typically renew their status and EADs along with the spouse’s H-1B or L-1 renewal. For example, let’s say the H-1B and H-4 status and EAD are valid to December 31, 2021. Under the settlement this week, by submitting renewal applications now, the H-4 spouse’s EAD would not be eligible for the 180-day extension beyond December 31, because the H-4 status expires December 31. On the other hand, if the EAD expires December 31, 2021, and the H-4 status remains valid to December 31, 2023, the EAD in this case would qualify for the 180-day extension. A further refinement in the settlement limits the automatic extension period to the time of the underlying status, such that if the H-4 or L-2 status is valid for only 30 days beyond the current EAD’s validity, for example, the automatic extension would be for just 30 days.
The L-2-specifc provision in the settlement relates to a concept in U.S. immigration known as work authorization “incident to status.” This means persons present in the United States in certain nonimmigrant (temporary) categories have work authorization along with their valid (unexpired) status. For example, H-1B and L-1 workers are authorized to work for their sponsoring employers while their status remains valid. The status is noted on the I-94 Departure Record. Before the settlement this week, there already was an understanding that L-2 spouses are authorized to work based upon their L-2 status and therefore did not need to apply for EADs. In many cases, it was easier simply to obtain the EAD, because the I-9 employment authorization procedure has yet to catch up the L-2 work authorization incident to status reality. This settlement confirms that L-2 spouses do not need EADs and instructs the Department of Homeland Security to provide corresponding guidance for employers.
The essence of the settlement is that it might benefit some H-4 spouses and will provide specific guidance confirming that L-2 spouses do not need EADs to work. It’s at least an indication that the Department of Homeland Security is striving to do better. Now we need Congress to join the effort to enact better immigration laws.