A settlement in the Shergill, et al. v. Mayorkas litigation has resulted in two major developments that will help many H-4 and L-2 spouses suffering from extremely long EAD processing times.

First, 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 current EAD will qualify for the automatic extension of their H-4 EAD for a period lasting the earlier of (1) 180 days past the expiration of their current EAD (2) the end date of the individual’s H-4 status, or (3) the approval or denial of the EAD renewal. Timely filed means the EAD renewal was filed before the expiration of the current EAD. This will place H-4 nonimmigrants on par with other categories receiving 180-day automatic EAD extensions, such as those with pending adjustment of status applications.

Second, USCIS will issue guidance to confirm that L-2 spouses are employment authorized incident to status (i.e. without the need for an approved EAD). The Form I-94 will be changed within 120 days from today to specifically indicate an individual is an L-2 spouse, so that the I-94 can be used for I-9 employment verification purposes. Until that occurs, L-2 spouses will also be able to take advantage of a 180-day automatic extension of their L-2 EAD under the same conditions described above for H-4 nonimmigrants.

These changes are effective immediately, and USCIS will be issuing further guidance to employers and benefit granting agencies to instruct how to complete I-9 employment verification given these new developments. Additionally, within 120 days from today, USCIS will amend the receipt notice currently issued to H-4 EAD applicants to detail the EAD auto-extension

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