Home » US Immigration - Visas » H4 Visa » H4 EAD, L2 EAD 180 Days Automatic Extension – Lawsuit Settlement Summary

H4 EAD, L2 EAD 180 Days Automatic Extension – Lawsuit Settlement Summary

As most of you know, at the moment, there is no automatic extension for H4 EAD or L2 EAD. In the last few years, thousands of H4 EAD and L2 EAD holders have lost jobs as they did not get their EAD application approved on time, despite having valid I-94 and their spouse’s extension at hand.

To address this issue, a class action lawsuit was filed by Wasden Banias Law firm and Steven Brown from Reddy Neuman PC firm in partnership with AILA. Today, there was a settlement between DHS and the plaintiffs regarding the H4 EAD and L2 EAD delays lawsuit. In this article, we will review the outcome and look at the official lawsuit settlement document.

Background of H4 EAD, L2 EAD Lawsuit : Why ? Case Info

If you look at the H4 EAD Processing times history, (shown in the below screenshot) you can see that has ranged anywhere from 8 to 15 months, depending on where and when you filed the H4 EAD application. It is no different for L2 EAD processing times. Many of these delays are just due to the inefficiencies in the way USCIS handles these cases. There were many H4 EAD delays lawsuits filed by law firms in the past to address this.

H4 EAD Delays - 15 months processing time
H4 EAD Delays – 15 months processing time

Finally, about 15 people, who were affected by these delays filed a class action lawsuit in September 2021 against DHS on how they have interpreted the law for L2 EAD holders and the H4 EAD processing delays. The lawsuit was represented in court by Wasden Banis Law firm and Steven Brown from Reddy Neuman law firm. AILA was also a partner in this. Below are the case details

  • Case was filed in Seattle at US District Court and referred as ” Shergill et al v. Mayorkas
  • Case Number : 21-cv-1296-RSM
  • Case filed on Sep 23, 2021.
  • Settlement Date : Nov 10th, 2021.
Shergill vs Mayorkas Case Info
Shergill vs Mayorkas Case Info

Let’s look at the settlement agreement and what it means for each of the

Summary of the H4 EAD, L2 EAD Lawsuit Settlement

DHS and the plaintiffs came to a settlement, instead of arguing the case for a much longer time and waiting for the court to come up with a judgment. The idea was it would save time and resources for all the parties. Below is the high-level summary of the case and settlement.

  • The key argument from plaintiffs ( who filed the lawsuit against DHS) are two things :
    • First one is that L2 EAD rule is interpreted improperly by DHS and they do not need EAD to work in the US as per statute.
    • Second one is that DHS is unlawfully withholding the automatic extension of H4 EAD.
  • The plaintiffs asked for preliminary injuction. Also, USCIS has adjudicated most of the EAD applications of the people represented in the case, except 3.
  • The settlement invovles fulfilment of both of the asks by the plaintiffs as listed below.
    • Employment authorization option for L2 Visa holders based on their status, instead of applying for EAD and up to 180 days automatic extension of exisiting L2 EADs
    • Up to 180 automatic renewal of H4 EAD for applicants with valid H4 status in US.

Let’s look into the specifics of each of the settlement items in detail below.

Update: USCIS released an official policy document outlining the above changes. We are working on an article that will explain the specifics. In the meantime, you can check USCIS Policy Document

Employment Authorization for L2 holders based on Status

As per the official regulation/statute, there was no need for DHS to mandate L2 Visa holders to apply for EAD. They were supposed to get employment authorization based on their L2 status. This is called work authorization “incident to status”. It was interpreted wrongly by DHS all these years.

Your visa status ( aka as status) in the US is reflected on the I-94 that is issued to you. You can get I-94 at the US Port of entry(PoE) during the PoE Process issued by Customs and Border Protection(CBP) officer or by I-94 issued by USCIS when you apply for Extension or Change of Status. Read more on US Visa vs. Status difference

As per the settlement with DHS, USCIS will issue policy guidance that states that L2 spouses can work based on their valid L2 visa status. They will work with CBP to change Form I-94 Arrival/ Departure record within 120 days to say that L2 spouse’s I-94 can be used for I-9 verification as a List C Document. See below text from the actual settlement document from the court.

L2 Visa holders can work based on Status Info
L2 Visa holders can work based on Status Info

Automatic Extension of L2 EADs for upto 180 days

Also, as per the settlement, USCIS will also interpret regulation 8 CFR § 274a.13(d) to give an automatic extension of L2 EAD ( filed under EAD Category Code (a)(18) ) for up to 180 days based on the below conditions.

  • L2 spouses should have filed L2 EAD renewals using I-765 form on time before L2 status expiry.
  • The L2 EAD automatic extension will end as soon as one of the below three conditions are met.
    • If the L2 status of the L2 EAD applicant ends ( meaning I-94 expires)
    • L2 EAD application decision is given by USCIS (approval or denial )
    • 180 days from the day the L2 EAD Card expires ( expiry date is on the L2 EAD Card)

Below is the screenshot of the official guidance from the Settlement document on the above.

L2 EAD Automatic Extension Guidance in Settlement Document
L2 EAD Automatic Extension Guidance in Settlement Document

USCIS will also issue guidance to the employers and agencies on how to interpret the above for I-9 compliance. Until Form I-94 is changed to reflect that L2 holders can work based on I-94, employers cannot just use I-94 for I-9 compliance. Until then, below are the documents that employers will need from L2 EAD applicants for I-9 compliance and allow them to work after EAD expiration.

  • Expired L2 EAD Card that has category listed as A18
  • L2 EAD Receipt notice ( I-797C notice of action for form I-765) that has class requested stated as “(a)(18)” that has filing date before the expiration of the EAD card
  • Form I-94 Arrival-Departure Record that is not expired and shows valid L2 Status.

The employers need to re-verify the work authorization of L2 EAD holder before one of the below occurs

  • I-94 expiration
  • The decision from USCIS on L2 EAD application
  • Before 180th day of the EAD auto extension period.

Below is the screenshot of the guidance on the employers’ guidance from the settlement document

Employers Guidance for L2 EAD Holders Automatic Extension
Employers Guidance for L2 EAD Holders Automatic Extension

Automatic Extension of H4 EAD with valid H4 Status for upto 180 days

In general, H4 Visa holders can apply for H4 EAD if they meet certain conditions. As per the settlement, for such eligible H4 holders with H4 EAD, USCIS will interpret regulation 8 CFR § 274a.13(d) to give an automatic extension of H4 EAD (filed under EAD Category Code (c)(26) ) for up to 180 days based on the below conditions.

  • H4 spouses should have filed H4 EAD renewals using I-765 form on time before H4 status expiry.
  • The H4 EAD automatic extension will end as soon as one of the below three conditions are met.
    • If the H4 status of the H4 EAD applicant ends, which is based on I-94 end date
    • H4 EAD decision is given by USCIS ( approval, denial )
    • 180 days from the day the H4 EAD Card expires ( expiry date is on the H4 EAD Card)

Below is the screenshot of the official guidance on the H4 EAD automatic extension from the Settlement document.

H4 EAD Automatic Extension Settlement Guidance
H4 EAD Automatic Extension Settlement Guidance

Similar to the above guidance given for employers handling L2 EAD holders, USCIS will also issue guidance to the employers and agencies on the automatic extension for eligible H4 EAD holders and also on how to handle documents I-9 compliance.

Below are the documents that employers will need from H4 EAD applicants for I-9 compliance to allow them to work after H4 EAD expiration.

The employers need to re-verify the work authorization before one of the below occurs

  • I-94 expiration
  • The decision from USCIS on H4 EAD application
  • Before 180th day of the H4 EAD auto extension period.

Also, USCIS will change the H4 EAD receipt notice within 120 days from the settlement date to indicate the auto-extension eligibility for up to 180 days for H4 EAD holders. This will be reflected in the new I-797C receipt notice that is sent for a timely filed H4 EAD renewal application.

Below is the screenshot of the guidance on the employers’ guidance from the settlement document

H4 EAD Settlement Guidance for I9 Verification for Employers
H4 EAD Settlement Guidance for I9 Verification for Employers

What about Concurrent filing of H4 + H4 EAD ?

The current settlement with USCIS only covers the standalone H4 EAD applications filed with USCIS. It does not really have any impact on the concurrent filing of H4 EAD along with H4 extensions. The reason is that the above settlement relies on the underlying H4 Status validity ( meaning I-94 validity). If you have applied for an H4 Extension and waiting for the decision beyond the I-94 expiration date, the settlement of H4 EAD will not benefit you.

Solution to above limitation for concurrent filings

Below steps are one of the easy solutions to the above issue and to leverage the settlement related to H4 EAD automatic extension :

  1. File H1B Visa extension with USCIS in premium processing. File the H1B extension at the earliest as soon as you are eligible for it. Do not file for H4 Extesnion along with H1B extension
  2. Wait for H1B Approval notice and use it for next steps.
  3. H4 visa holder travels out of the country ( Canada / Mexico) and get I-94 extended until end of H1B approval notice expiry date ( basically 3 more years). If you cannot get I-94 extended, you can travel to home country and get H4 Visa stamping done as well.
  4. File for H4 EAD standalone with USCIS after you have the new I-94 with 3 years validity. As you would have valid I-94 for longer period, you can get the 180 days automatic extension, if there are delays with H4 EAD.

You just need to plan ahead, so that you can leverage the settlement provisions.

Next Steps by USCIS

Now that we have a settlement in the court, below are the next steps in the upcoming 120 days :

Update: USCIS released an official policy document outlining the above changes. We are working on an article that will explain the specifics. In the meantime, you can check USCIS Policy Document

  • USCIS would issue formal policy document outlining the settlment and what they intend to do
  • They will update their website with new guidance for H4 EAD, L2 EAD automatic extensions.
  • They will update the receipt notices for H4 and L2 EADs to reflect the same
  • They will work with CBP to make sure the L2 status can be used for I-9 verification just based on I-94.

We need to wait for the formal guidance from USCIS on the above aspects.

Overall, this is probably one of the best things that can happen to anyone on H4 or L2 status, and using the EAD option as this will really solve many of the delays and job loss situations. While this is not a perfect solution, it will definitely help many avoid raising the USCIS Expedite Request and avoid losing jobs.

What do you think of the H4 EAD and L2 EAD automatic extension settlement? Share your thoughts in the comments below

You can check out the official settlement document below for more information.

   

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54 Comments

  1. Hi,
    We have filed for my wife’s H4 EAD extension along with my H1 transfer in premium processing. My wife has valid I94 until 2+ years, but her EAD expires in next 30 days. My attorney says we may not receive receipt notice for her EAD application before the last day of her EAD but we have filed the case before expiry of current EAD. In this case if we do not receive her EAD receipt on time what are her options to remain employed until we receive the receipt notice. Can we request her employer to verify employment authorization without receipt notice?

    Thanks to this community in advance!

    Reply
    • Jai,
      This is slightly grey area. The reason is, employer needs the receipt notice for I-9 compliance. If not, it can be tricky for them. Speak to your employer and their attorney on the best path for this. Do update here how it goes.

      Reply
  2. Hello All,
    My I-94 is expired and waiting for L2 extension approval. Can I work using my I-94 in I-797A(Approval Notice) which I am going to get after the approval?

    Reply
    • Suresh,
      As your I-94 expired, you do not have status. With no status, you cannot work. On the second one, it depends on how the I-94 comes, usually USCIS does not give L2S status, only CBP can. This just came effective from Jan 31st, so it is not clear. Let us know, how you get your I-94 and also discuss it with an attorney to have clarity. Do post how it goes here.

      Reply
  3. Question: I am in a little bit of a pickle. I renewed my H1B in OCT 2021 and got approved in Nov 2021. My wife also applied for H4 and H4 EAD at the same time. Our old visa expires in April. Of course, her h4 processing is not done yet.

    Her I94 shows the date for a week after the H4 expiry.

    Wondering what are my options here? Please help.

    Reply
  4. Anyone know what happens if current H4 EAD is expiring on holiday and renewal application reached next business day. Is it considered as timely filed ? And am I eligible for 180 day auto extension?

    Reply
  5. It’s been already more than 60 days, still the spousal information on I 94 is not updated,

    Any idea when it will happen?
    On 120th day?

    Reply
  6. Hi, i have applied for H4 EAD renewal before my current EAD expired. My I-94 issued at port of entry is expired but i got visa renewed with USCIS so my H4 status is valid. The auto renewal condition specifically calls out unexpired I-94. Does it mean i’m not eligible for auto renewal although my status is valid.

    Reply
  7. Hi,
    I have valid L2 visa and I94 valid till May 2022. I got the SSN as well. I recently moved to US in October. I was thinking to apply for EAD and in between this news came. Can I start looking for job immediately or do I need to wait, I am not able to see any effective date of this new rule anywhere.
    My previous employer would be interested to hire me as they are not able to fill the position till now.

    Reply
  8. Hello,

    I have my H4 Approved untill 08/2024 with a valid i-94 and H4 EAD still pending. Am i eligible for Automatic extension and what is the effective date for new rule to be effective?

    Reply
  9. Hi Kumar,

    I am confused about the strategy you outlined regarding concurrent H4+ H4 EAD filings. This strategy makes sense if H4 extensions thru I-539s are also taking a long time to adjudicate after the temporary elimination of the bio metrics rule. However, if one files for H1b extension through premium processing and H4 extension along with it using I-539 and if the H4 is approved within 2-3 months, presumably owing to faster adjudications owing to the roll back of the bio-metrics rule, then one can use the H4 extension paperwork, which has a fresh I-94 attached to it, to file for the H4 EAD. This precludes traveling outside the U.S. to Canada/Mexico to get an I-94 extension or a new H4 stamp leading to a new I-94 extension at the U.S. port of entry. No?

    Reply
    • hi Kumar, I think your points perfectly make sense. I was also confused with “Solution to above limitation for concurrent filings” mentioned in the article. I was thinking like we would apply for H1B Extension along with H4 Extn and H4 EAD renewal(I-765) all concurrent as early as possible before H1B/H4/H4 EAD expires. Following are the three scenarios I can think of what would happen next.
      1. If H1, H4 and H4 EAD are all approved before H4 EAD expiry, this is an ideal scenario and we are good.
      2. If H1 and H4 approved but not H4 EAD renewal before expiry then also we are good since we are eligible for automatic extension.
      3.If only H1 extn is approved, but not H4 and H4 EAD then its a problem. In this case, how about H4 spouse travels out of US (to Canada/Mexico/home country etc) and get back to US where at POE she/he will get extended I-94. But this travel should happen before H4 EAD expires. Does this make sense? My only concern is what if USCIS abandons H4 EAD renewal application while the H4 spouse is out of US?

      Reply
  10. When the USCIS comes up with new i94 for L2 spouse, will L2 spouse still need to have unexpired i94 in order to work. Currently my i539 is under extension process so I cannot make use of auto renewal and will have to wait for new i94 by DHA

    Reply
  11. My H4 got approved and EAD is pending (no updates). It’s been 20 days since H4 approved.

    Filled H4 and H4 EAD together 5 months back.

    In this case, does 180 Days Automatic Extension applied to my EAD as currently my new H4 has valid i94 ?

    Reply
    • Hi Navya,

      The question you asked is similar to what I asked above. How long did it take to get your H4 approved? To me it seems the language in the settlement is quite clear. As long as you have a new I-94 connected to your H4 that has a date beyond the expiry date on your current H4 EAD, the 180 day extension should apply to you.

      Reply
      • Hi Abhi and Navya,

        I am in similar situation. H4 approved on Sep 24 2021, H4 EAD still pending since June 15 2021.
        My question is will i be eligible for 180 days automatic extension and is the Automatic extension policy effective now ?

        Reply
      • It took 4 months to get H4 Approval.

        If I check new H4 approval, that comes after exact 7 days of EAD expiry.
        H4 & EAD both expired on : Oct 10

        New H4 Approval came on : Oct 17
        EAD is still pending

        Reply
  12. This suggests E3D EAD is included: https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension

    Reply
  13. USCIS has updated the policy guidance and it is on the website. For all those who doubted where this will come out. There’s the answer.

    Reply
  14. What about L2 standalone EAD? I have a valid I94 and I am awaiting fresh EAD card since April 2021, does this mean I can start working without EAD?

    Reply
  15. Hi Team,

    Thankyou for the great article here.. we are going to file standalone h4 ead for the first time. Will this settlement benefit for first time H4 ead application?

    Reply
    • Ankit,
      Yes, it will for sure. But, we need to wait for the official USCIS guidance on this. They are yet to release the details. This is based on court settlement document only.

      Reply
  16. My L2 EAD and L2 Visa expired in May 21 and i filed L2 visa extension and EAD in Dec 20.

    So my i94 also expired in May 21 so L2 visa and ead both expired on may 21.

    So now until i get L2 visa extension approved will not get i94 extended so how my L2 EAD will work?

    Reply
    • Pankaj,
      We need to wait for USCIS guidance, at the moment you cannot use anything as it is not official USCIS guidance. it is based on court settlement.

      Reply
  17. My wife and I are just filing for L1A+L2. Will those new rules already apply, meaning my wife’s L2 automatically comes with work authorization?

    Reply
    • duman,
      It is not official yet and we don’t have the guidance from USCIS. The update is based on a settlement, we will know more once USCIS gives us the update.

      Reply
  18. My wife’s L2 EAD will be expired on Feb. 2022. Will you suggest we file the extension or wait until USCIS announced. When do you expect the new guidance will release?
    Thanks

    Reply
    • Sho,
      Still nothing official has come out from USCIS. It is only court document and is not sufficient. You need to wait for the USCIS official update.

      Reply
  19. Is this settlement sufficient at least to request SSN for a L2 with EAD/I-765 pending or one has to wait up to 120 days until USCIS executes?

    Reply
    • Hi Alex, when my wife and I first got our L1 and L2 in 2018, I was able to request both our SSN at the same time even though my wife did not have her EAD yet (it was not even requested). So I think you should be able to get an SSN for her if you go to an SSA office.

      Reply
  20. Wont we get a new paper I94 along with approval notice when we apply for renewal by default . Can we get that first and then apply for EAD next to indicate that we are in status via I94

    Reply
    • Santosh,
      You will get I-94 for the related approval, but the biggest problem is getting H4 Approval. The delays to process H4 extensions are very bad as well. That’s the rationale to go out and get I-94 extended.

      Reply
  21. I completely agree with Jay. Even I have filed both H4 and EAD simultaneously and this is not going to help me. How can one travel outside country when the H4 application is still pending? Even if it gets approved (which is also taking long time) , getting visa stamped from country of origin would also take some time . Overall solutions provided doesn’t look feasible.
    My company has given me 90 days to submit renewed EAD , 41 days already gone.

    Reply
    • Sami,
      Well, it may or may not help someone already in the process, but can really help someone going to apply. Again, we need to wait for the official guidance, there may be some provisions for someone already in the process, we just need to wait for the guidance.

      Reply
  22. It will not help for most of H4 community as almost everyone files h4 extension +H4 EAD. Not sure if the solution provided work either like get i 94 extended travelling outside country. I doubt in current scenarios where h4 EAD taking 1 year for approval how even 6 months more extension is helpful.? We need h4 EAD premium processing which will address all issues.

    Reply

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