Over the past two years, the processing of Employment Authorization Document (EAD) cards for H-4 and L-2 spouses has reached crisis levels of delays. Government processing regularly takes more than 6 months, and in many cases has been taking more than 1 year, sometimes even more than 2 years. During these lengthy processing delays, H-4 and L-2 spouses have lost jobs or found themselves unable to work, even when their work directly contributes to the U.S. economy.
A New Automatic Extension of EADs is Available for Some H-4 and L-2 Spouses
In September, a group of plaintiffs sued the U.S. Department of Homeland Security, which is the government agency responsible for immigration benefits in the USA. This lawsuit was settled on November 10, 2021 and as part of the Settlement Agreement, the U.S. government agreed to recognize an automatic extension of EAD validity for up to 180 days as long as an EAD extension application was timely filed before the expiration of the old EAD card.
This 180 day automatic extension does not apply to everyone. To qualify for the 180 day extension, the H-4 or L-2 spouse must meet all 3 conditions as follows:
Have an expired EAD card
Have the receipt notice for the pending EAD extension application
Have an unexpired H-4 or L-2 I-94
For those employees who are about to have their EAD expire, this is good news because they may be able to avoid a gap in work authorization.
For those employees whose EADs have already expired and who have been terminated or placed on a leave of absence as a result of the expiration, they may now have proof that they are once again authorized to work because of the 180 day automatic extension. H-4 and L-2 spouses in this situation can talk to their former or current employers about returning to work. They can also seek new employment with any U.S. company.
The Automatic Extension of EADs Does Not Apply to H-4 or L-2 Spouses Waiting for an Extension of Status
The most important takeaway from the Settlement Agreement is that the 180 day automatic extension will expire if the I-94 expires, and this is a tricky issue, because most of the time the EAD extension is filed when the I-94 is already expiring. The H-4 or L-2 extension of status (which provides the new, extended I-94) is normally filed alongside the EAD extension application. This means that there are large numbers of H-4 and L-2 spouses that cannot benefit from this Settlement Agreement. However, there may be strategies for this group of people as described in the following section.
International Travel Can Bypass the Need for Extension of Status and Open the 180 Day Automatic Extension as an Option
As long as the H-4 or L-2 EAD holder can meet all 3 conditions for the automatic 180 day extension of work authorization, they are granted the full 180 days past the expiration on their EAD card.
One way to get the 180 day automatic extension period is to ensure that a new I-94 is issued as soon as possible. Whenever a person travels internationally and re-enters the United States, they are issued a new I-94 form by CBP. If the H-4 or L-2 spouse can show that they are entitled to extended status when they re-enter the U.S., then CBP will issue an extended I-94. The documents that entitle the H-4 or L-2 spouse to the extended I-94 include:
A valid visa stamp or proper use of automatic visa revalidation (not required for Canadian citizens);
Spouse’s H-1B or L-1 I-797 approval notice or endorsed I-129S showing that the spouse has extended authorization on H-1B or L-1 status;
Marriage certificate showing that the spouses are lawfully married; and
Proof that the H-1B or L-1 status is actively employed and maintaining their status (usually recent paystubs are enough, or an employment verification letter)
It is important to note here that the H-4 or L-2 spouse’s I-94 as issued by CBP will match the status expiration date of the H-1B or L-1 spouse. It cannot be granted for longer.
There are 2 example scenarios below that help to illustrate how this strategy can be used:
Example Scenario 1: A family with H-1B, H-4, and H-4 EAD all have identical expiration dates on January 31, 2021. They file the I-129, I-539, and I-765 forms for extensions of status and work authorization by November 15, 2021. If the I-129 is filed with premium processing, then the H-1B extension approval notice should be received by mid-December 2021. However, the I-539 and I-765 would likely be processing for well over 6 months, which means that the H-4 spouse’s I-94 will still show an expiration date of January 31, 2021. In this case, the 180 day automatic EAD extension will not benefit the H-4 spouse because the automatic extension ends the day the I-94 expires. However, if the H-4 spouse travels internationally at the end of December with the H-1B holder’s H-1B extension approval notice and re-enters the U.S. before the I-94 expiration date, the H-4 spouse should be granted a new I-94 that matches the H-1B extension approval validity date (for example, through January 31, 2024). This means that the spouse would meet all the conditions for relying on the 180 day automatic extension for the EAD, so work authorization would be extended during the 180 day period. Traveling and getting the new I-94 means that the H-4 spouse can take advantage of the 180 day automatic extension of the EAD and avoid a gap in work authorization.
Example Scenario 2: A family with L-1A, L-2, and L-2 EAD had their status expire on October 31, 2021. The L-1A, L-2, and L-2 EAD applications were timely filed on July 1, 2021 well before the status expiration date. The L-1A received an RFE, which was responded to, but the extension remains pending with the U.S. government. The L-2 spouse has already lost work authorization because the EAD has expired, so the company has placed the L-2 spouse on a leave of absence. The L-1A holder can upgrade the pending L-1A extension to premium processing to get an approval notice for the L-1A extension quickly. Once the approval notice is received, the L-2 spouse can travel abroad. When the L-2 spouse re-enters the U.S. with the extended L-1A approval notice and all documents mentioned earlier in this article, the L-2 spouse should be granted an I-94 with the extended period of time (for example, a new expiration date of October 31, 2023). The L-2 spouse can then take the new I-94 and the still pending I-765 EAD receipt notice to their employer as proof of work authorization for 180 days past the EAD expiration date of October 31, 2021. The L-2 spouse can come off leave of absence and start actively working again. Hopefully the EAD extension would be adjudicated during those 180 days to avoid a further work gap in the future.
International travel always requires proper documentation. If a visa stamp in the passport is expired, the H-4 or L-2 spouse may be required to obtain a new visa stamp before re-entering the U.S. At the present moment, the consulates that issue these stamps are backlogged due to COVID staffing issues and postponed applications, so delays should be considered as part of the strategy.
When considering this strategy, H-4 and L-2 spouses should also be advised that travel can be risky. The COVID pandemic has demonstrated this risk with constantly changing rules, delays, and frustration. The U.S. government likewise does not always handle applications the same way when travel is involved. For example, there were isolated reports last year that some pending EAD extension applications were denied when the applicant traveled internationally, even though the U.S. government had before routinely kept them in process and approved them regardless of travel status. Immigration attorneys cannot guarantee anything when travel is involved. They can only advise on what is likely to happen and what should happen, according to normal legal process.
Quick Update on H-4 and L-2 Extension Adjudications
There have been isolated reports of USCIS starting to process H-4 and L-2 EAD extensions at the same time as the principal H-1B or L-1 petition, even applying the premium processing. If USCIS starts doing this for more cases, then this travel strategy might not be necessary, because spouses will get the extended I-94s around the same time that their spouses get the extended H-1B or L-1 status. But at the present moment, with H-4 and L-2 extensions taking well over 6 months for USCIS to adjudicate (and sometimes 15-20 months or longer), travel is a strategy that can be considered for avoiding gaps in work authorization for H-4 and L-2 spouses.
A Special Note for L-2 Spouses
L-2 spouses may soon not even need to rely on the 180 day automatic extension for their EADs, as soon as CBP implements a new kind of I-94 for them. Please see Waypoint Immigration’s article here for more information. This new I-94 is going to be unique to L-2 spouses and will not apply to H-4 spouses.
Disclaimer: As a result of the settlement and new leadership at the relevant U.S. immigration agencies, the process for extensions of status and work authorization is rapidly changing. Waypoint Immigration strongly recommends that any H-4 or L-2 spouse desiring a legal opinion on their situation consult with an attorney who can discuss the specifics of their personal circumstances. Waypoint Immigration will not be responsible for complications in any individual case where a consultation was not completed because this article is being provided for general information only.