USCIS Sued Over H-4 and L-2 EAD Policies

The American Immigration Lawyers Association and a litigation partner have brought a class action lawsuit on behalf of H-4 and L-2 spouses who have applied for work authorization as the dependents of H-1B and L-1 principal visa holders.

The lawsuit seeks to overturn USCIS policies that:

• require an L-2 spouse to apply for an Employment Authorization Document (EAD) for employment, and,
• prohibit an H-4 or L-2 spouse from receiving  an automatic extension of their EAD while  a renewal application is pending.

The complaint alleges that USCIS policies and processing delays have forced tens of thousands of nonimmigrant H-4 and L-2 spouses out of employment by creating gaps in their work authorization. The lawsuit also alleges that, per regulation,  L-2 spouses are authorized to work incident to status and should not be required  to apply for a separate EAD for employment.  Under current policy, an H-4 or L-2 EAD holder must apply for an EAD to work, and must cease working when their EAD expires even if an EAD renewal application is timely filed. Official USCIS posted processing times for these applications currently range from 10 to 15 months.

The lawsuit asks the court to declare the USCIS policies unlawful and to compel USCIS to

• provide L-2  spouses with evidence of employment incident to status, or, in the alternative, provide L-2 EAD holders with documentation establishing an automatic extension of work authorization with the filing of an EAD renewal application; and
• provide H-4 EAD holders with documentation establishing an automatic extension of work authorization with the filing of an EAD renewal application.

The case is Shergill, et al. v. Mayorkas, Case 2:21-cv-01296, 9/23/21  in the U.S. District Court for the Western District of Washington.