USCIS Issues Policy Alert in Follow-Up to the Spousal EAD Lawsuit Settlement

On November 12, 2021, the U.S. Citizenship & Immigration Services (USCIS) issued a Policy Alert providing guidance on how it will implement the changes resulting from the Shergill, et al. v. Mayorkas settlement. This announcement addresses one of the points raised in our November 11th alert, by confirming that spouses in E-1, E-2, or E-3 dependent status will also be considered to be employment authorized incident to their status. The USCIS Policy Alert also states that immediate steps will be taken to modify Forms I-94 so that E and L dependent spouses will be able to work without first having to obtain employment authorization documents (EAD), while the Settlement Agreement had stated a deadline of no later than March 10, 2022.

The Policy Alert includes an extensive discussion of how these procedural changes reflect an updated interpretation of the regulations pertaining to automatic EAD extensions. It describes how the USCIS interpreted undefined terms such as “class” and “category” in the past to support the restrictive view that prevented it from granting EAD auto-extensions to dependent spouses. This discussion appears to be an elaboration of language included in the Shergill, et al. v. Mayorkas Settlement Agreement, that USCIS did not unlawfully withhold employment authorizations or EADs to qualifying spouses, and that the settlement was not an admission of liability or fault on the part of the Department of Homeland Security (DHS).

How this Affects Our Clients

USCIS is exercising its discretion and flexibility to help prevent gaps in employment authorization and provide additional security to employment-authorized spouses and their employers.  The auto-extension measures will reduce the adverse effects of massive EAD processing delays until the Form I-94 notations are changed.  The USCIS will also decrease the burden on E and L nonimmigrant spouses and free up its adjudicative resources by allowing dependent spouses to work incident to status.

We will be reaching out to employees of our clients in E, H, and L spousal status who may be impacted by this agreement, and will keep our clients updated with any new information regarding the implementation of these changes.