(Via AILA.org) Major Settlement Changes How USCIS Adjudicates Work Permits for [H-4 and L-2 ] Nonimmigrant Spouses
Via AILA.org
AILA and its litigation partners entered into a settlement agreement with DHS that provides structural changes for H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. (Shergill, et al. v. Mayorkas, 11/10/21)
For H-4s:
Within 120 days of the Effective Date, USCIS will amend the receipt notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.
For L-2s:
USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes.
FOR IMMEDIATE RELEASE
Wednesday, November 10, 2021
Washington, DC – The American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown, celebrate the historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.
Jesse Bless, AILA Director of Federal Litigation stated, “Today marks a historic change for L-2 spouses who will now enjoy work authorization incident to status. AILA’s membership has long advocated for the correct statutory interpretation and we’re delighted to have reached this agreement, which includes relief for H-4 spouses, through our litigation efforts with Wasden Banias and Steven Brown. It is gratifying that the administration saw that settling the litigation for nonimmigrant spouses was something that should be done, and done quickly.”
Jon Wasden stated, “After years of outreach to the agency, it became clear that litigation was unfortunately necessary. Despite the plain statutory language, USCIS failed to grant employment authorization incident to status for L-2s. The other issue relates to H-4s whose work permits expire prior to their H-4 status; this is a group that always met the regulatory test for automatic extension of EADs, but the agency previously prohibited them from that benefit and forced them to wait for reauthorization. People were suffering. They were losing their high-paying jobs for absolutely no legitimate reason causing harm to them and U.S. businesses. So, while I’m glad the agency finally followed the law, it is frankly frustrating that an easily fixable issue took this long to address.”
See this op-ed from Forbes for more information
Read the Decision: Shergill, et al. v. Mayorkas, 11/10/21 [PDF]
Indian Nationals File Lawsuit Challenging Presidential Proclamation 10052’s H-1B/H-4 Visa Ban
A group of 174 Indian nationals, including seven minor children, filed a lawsuit in the U.S. District Court for the District of Columbia challenging Presidential Proclamation 10052, which took effect on June 24, 2020, and temporarily suspends entry of certain H, J, and L nonimmigrants into the United States. The plaintiffs seek an order declaring Proclamation 10052 to be unlawful, compelling DHS to issue decisions on their pending requests for H-1B and H-4 visas, and enjoining DHS from refusing entry into the United States based on the proclamation, among other relief.
(Panda, et al. v. Wolf, et al., 7/14/20)
New Version of Form I-539 Effective March 22, 2019
Via AILA.org
On March 1, 2019, USCIS held a teleconference to discuss revised Form I-539 and new Form I-539A. USCIS provided the following updates during the engagement, among others:
- An official copy of the revised Form I-539 and new form I-539A will be published on the USCIS website on March 8, 2019.
- New rollout period:
- USCIS will continue accepting Form I-539 with an edition date of 12/23/16 until March 21, 2019, as long as it is received by USCIS by that date.
- USCIS will reject any Form I-539 with an edition date of 12/23/16 that is received by USCIS after March 21, 2019.
- Starting on March 22, 2019, USCIS will only accept the revised Form I-539 with an edition date of 02/04/19.
This information is currently posted on the I-539 page of the USCIS website.
Trump administration indicates that it will terminate Work Permits (EADs) for H-4 Spouses of H-1B Workers
Delay in NSC Processing of H-4/EAD Applications Filed with Premium Processing H-1Bs
Via AILA.org
The Nebraska Service Center (NSC) has advised that, due to the high volume of incoming premium processing requests, H-4 I-539 and H-4 I-765 EAD applications that are concurrently filed with premium H-1B petitions before the April 3, 2017, premium processing suspension may not be adjudicated concurrently with the I-129 and within the prescribed 15 days. Due to the rapid influx of premium requests, I-129 adjudicators are focusing first on the I-129 so that it can be processed in accordance with the premium requirements. When a decision is made on the I-129, any H-4 and EAD applications are sent to another team, which should adjudicate them within a week or two. Once the surge is over NSC expects to resume fully working all applications submitted concurrently with the I-129.
NSC has advised that if no notice has been received on a riding I-539 or I-765 by the end of April, applicants or their attorneys can contact the National Customer Service Center to place a Service Request.
Indian Engineer’s Death could leave Wife Without Legal Status
Mr. Srinivas Kuchibhotla, the victim of a hate crime in Kansas City, appears to have held an H-1B professional work visa. Unfortunately, with his death, his wife’s H-4 Dependent visa (which Ms. Dumala appears to hold) would normally be terminated by U.S. Immigration. We should urge USCIS and Congress to offer her and anyone else affected by such a tragic situation a “Survivor” H-4 visa option to continue to reside in the U.S. following the death of an H-1B family member, if they wish to.
“I don’t know if this is the right platform to talk about this. But, the government has to make sure that I can come back to this country at my will to pursue his dreams of me being successful…me being successful in any field that I choose. And I have to fulfil his dreams, right here where he started.” – Ms. Sunayana Dumala
Further, because Mr. Kuchibhotla in his professional capacity as a Garmin Engineer was doing his part to “Make America Great Again”, we ask the @realDonaldTrump to issue a strong condemnation of the racist and xenophobic motivations that led to this violence.
The U.S. Immigration Law Blog by Ashwin Sharma 
Immigration Update: H-1B & H-4 Visa Processing Delays and New Social Media Vetting Standards
We are monitoring significant scheduling changes for H-1B and H-4 visa appointments, with interviews originally set for mid-December 2025 now being cancelled and moved as far out as April 2026.
These disruptions appear tied to the Department of State’s new mandatory online presence review, effective December 15, 2025, which requires H-1B and H-4 visa applicants at consular posts to set their social media accounts to a public setting.
By way of background, in June 2025, the State Department rolled out a similar framework for F, M, and J students and exchange visitors, and the inclusion of H-1B and H-4 applicants marks the first expansion of that policy. The Department has indicated that this online presence review covers:
The recent announcement does not describe the exact standard Consular Officers will use when reviewing H-1B and H-4 online presence. However, H categories are being folded into the policy already in place for F, M, and J applicants, and several details about that policy were described in media reporting in the spring regarding a June 2025 State Department cable to consular posts.
According to the State Department’s previous cable, Consular Officers are instructed as follows:
If Consular Officers identify information they view as derogatory, they can refuse the application outright or require the applicant to appear for a follow-up interview. Discovery of such content can also trigger additional review to determine whether the foreign national will respect U.S. laws and engage only in activities consistent with their nonimmigrant status.
Media outlets that reportedly reviewed the State Department cable addressing the online presence policy as applied to H-1B and H-4 applicants indicate that the key focus for these categories is whether the applicant has been responsible for, or complicit in, the “censorship or attempted censorship” of U.S. citizens at any point in their employment or personal history.
Employers and affected foreign nationals should expect that H-1B and H-4 visa appointment availability will tighten as consular posts absorb the additional work associated with the online presence review.
The new vetting standards increase the likelihood that some applicants will be flagged for lengthy background checks and additional security review. In practice, this can mean:
H-1B visa applicants facing possible delays should stay in close contact with their employer and immigration counsel. Any foreign national planning international travel, whether they already hold a valid visa or will need to apply for a new one, should review these online presence issues and timing risks carefully before finalizing plans to travel abroad.