Thread by @AttyStevenBrown

LONG THREAD: I have seen a some questions about the Shergill settlement. So I figured a thread can address some of the bigger ones.

#H4EADdelays #L2EADDelays 1/

First, it's important to remember that we still have an active class action case for #H4EADDelays and underlying I-539 delays. We can continue to push on that case. We understand that concurrently filed cases are the bigger group, and continue to fight for those people. 2/

A common question is why are L-2s incident to status and H-4s are not? The answer is the Immigration and Nationality Act (INA) 3/

In the INA, Congress specifically granted work authorization to L-2 spouses. The INA specifically states that the Attorney General SHALL authorize L-2 spouses to engage in employment. The language is the same for E-2 4/

For ~20 years, USCIS has been improperly interpreting the L-2 statute to require L-2 visa holders to file L-2 EADs and wait for adjudication in order to work, despite mandatory language for work authorization. This was issue one in our case. 5/

Unlike L-2s, the #H4EAD is a regulatory construct created by USCIS' interpretation of the Congressional intent in AC21. USCIS recognized the need to allow spouses to work in order to retain high-skilled immigration talent. 6/

Thus, regulations govern the H-4 EAD program, and USCIS has declined to give H-4's work authorization incident to status for multiple reasons. For example, not all H-4 holders qualify for an H-4 EAD because an I-140 for the primary spouse is required.
7/

In short, the INA requires (and should have always required) L-2 and E-2 spouses to get work authorization incident to status. Through regulation, USCIS has declined to do this for H-4s. 8/

So what about the automatic extension for ALL H-4s including those with pending I-539s? This is, of course, the bigger group suffering from #H4EADDelays 9/

Through regulation, USCIS has declined to provide automatic extensions for H-4/L-2 EADs because, essentially, they say "what if we have to deny the primary spouse or the I-539?"

Silly reasoning for not doing auto-extensions, but that is the Agency's reasoning. 10/

Multiple lawsuits have tried addressing this flawed logic and sought to get an automatic extension for H-4 EADs, but courts have ruled that USCIS has gone through proper rulemaking procedures to forego the automatic extension for H-4 EADs. 11/

So why the change in Shergill with standalone EADs?

While the majority of the problems lie with concurrent filings, there is a good number of cases where someone is able to get their H-4 I-94 extended before the H-4 EAD expires. 12/

This has happened through people traveling after the H-1B extension (most common), in the few instances where USCIS quickly processes the I-539, but not the I-765, or when the H-1B transfers, files an H-4 extension to match, but holds off on the EAD until later. 13/

As noted, USCIS has declined automatic extension because "what if we deny the I-539 or primary I-129?" In the case of standalone EADs, those problems don't exist because the underlying status has been granted. 14/

These particular cases meet the criteria for an automatic extension, so why not? Frankly, I think USCIS didn't realize this group existed, but I have had many conversations with folks that do fit these criteria and should have been getting auto-extensions previously. 15/

So why is Shergill good once fully implemented?
For L2s and E2s, this is a game-changer. L/E-2s will have work authorization incident to status and not have to file I-765s in the future. While USCIS works on this, they will also get the standalone automatic extensions like H4 16/

USCIS is working with CBP to develop and implement the new I-94 so the I-94 can be used for I-9 purposes for the L-2 and E-2. As per our agreement, they plan to get this done within 120 days and should be working quickly to get this done. 17/

For the people that are able to travel or have other scenarios where they have an H-4 extension approved without the EAD extension (perhaps H-1B transfers), the automatic extension will significantly reduce gaps in employment from lengthy delays. 18/

Remember, to qualify for the automatic extension you must have a valid I-94 for the extension already and have filed your EAD application prior to the expiration of your current EAD. 19/

For #H4EADDelays, I would expect USCIS to reallocate the L-2 EAD adjudicators to clear out the backlog of H-4EADs and other immigration benefits. 20/

The same team of myself with @rnlawgroup, @wasdenbanias, and @blesjm1 of @AILANational continue to push on our case which is attacking the long processing times facing I-539s for H4/L2s as well as #H4EADDelays, and won't stop just because we have solved 1 part of the puzzle. END