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USCIS Settlement Is Good News For L-1 And H-1B Visa Spouses

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If you are the spouse of an L-1 or H-1B visa holder, good news has been rare in recent years. U.S. Citizenship and Immigration Services (USCIS) exacerbated the wait for employment-based green cards by causing long processing delays for work authorization, resulting in the spouses of many high-skilled foreign nationals stopping work and losing their jobs. A new legal settlement with USCIS brings relief to many of these spouses, although continued litigation is needed for additional changes.

“Once implemented by the agency, L-2 spouses will no longer have to apply for work authorization and need an EAD (Employment Authorization Document) as proof in order to work in the United States,” said Jesse Bless, director of litigation at the American Immigration Lawyers Association (AILA), in an interview. “For H-4 spouses who have lawful status and merely need to renew their employment authorization, they will now enjoy an automatic extension of their authorization for 180 days after expiration should the agency fail to process their timely-filed applications.”

Bless notes the settlement in Shergill evolved from a still-pending lawsuit (Edakunni). Edakunni, filed in March 2021, sought lawful status and work authorization. The case settled with USCIS, Shergill, was filed on behalf of L-2 and H-4 plaintiffs who sought reauthorization (or extensions) of employment.

“USCIS still has yet to settle the case from March, and the judge has yet to make a decision,” said Brad Banias of Wasden Banias.

The March 2021 class action suit filed by the American Immigration Lawyers Association (AILA), Wasden Banias and others sought to compel the Department of Homeland Security (DHS) to fix policies that caused many spouses of H-1B and L-1 visa holders to lose their work authorization. Because of the policies, it could take USCIS two years to process many applications for spouses, making it mathematically impossible for the spouses to remain employed.

One of the original plaintiffs in the suit filed in March 2021 came to America as an international student and returned as the spouse of an H-1B visa holder. As the spouse of an H-1B professional with an approved immigrant petition, she became eligible for an H-4 EAD (Employment Authorization Document). She worked in health care as a quality assurance auditor in Massachusetts. “Concurrent with her spouse’s extension, on August 25, 2020, she filed applications to extend her H-4 status on Form I-539 and EAD on Form I-765,” according to the lawsuit. She “lost her job because of agency inaction.”

The recent settlement should help many spouses. “H-4 and L-2 spouses have been disproportionately affected by USCIS delays in processing EAD applications, and many have been forced to stop working while waiting for their renewal card,” according to Berry Appleman and Leiden. “These changes will provide much-needed relief to these individuals and their families, and will take some pressure off of other USCIS work streams.”

“There are some limitations in the new policies,” noted the Fragomen law firm. “Based on the terms of the settlement, H-4 nonimmigrants who file EAD renewals concurrently with an I-539 extension may receive only a brief auto-extension, just to the end of their current I-94 date. L-2s who do not hold an I-94 specifically noting their spousal status will still need an EAD to work until they are issued a new L-2 spousal I-94.”

Among the key terms of the settlement:

-        “USCIS will interpret 8 CFR § 274a.13(d) such that certain H-4 nonimmigrants who timely file their I-765 EAD [Employment Authorization Document] renewal applications and continue to have H-4 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(26)-based employment authorization and EADs.”

-        “USCIS will issue appropriate guidance to employers and benefit granting agencies. Such guidance will state that EAD auto-extensions apply to qualifying H-4 nonimmigrants who continue to have H-4 status after their (c)(26) EAD expires.”

-        “USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with CBP [Customs and Border Protection], 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.”

-        “USCIS will interpret 8 CFR § 274a.13(d) such that certain L-2 nonimmigrant spouses who timely file their I-765 EAD renewal applications and continue to have L-2 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(18)-based EADs.”

-        “USCIS will issue appropriate guidance to employers and benefit granting agencies regarding its interpretation of 8 CFR § 274a.13(d) outlined above as it relates to L-2 dependent spouses. Such guidance will state that EAD auto-extensions apply to L-2 nonimmigrants who continue to have L-2 status after their (a)(18) EAD expires.”

Steven Brown of Reddy & Neumann and Wasden Banias said litigation would continue in the March case to achieve broader changes and address delays for employment authorization that affect H-4 spouses. (Kripa Upadhyay of Orbit Law also has been a key member of the litigation team.)

One result of the still-pending March case (Edakunni), according to Brad Banias, is USCIS suspended its biometric policy for H4 EADs almost immediately. The biometric policy had been blamed for many of the delays. In addition, USCIS adjudicated all of the pending petitions for the original plaintiffs.

“AILA and the U.S. Chamber of Commerce have been trying for 20 years to get USCIS to see reason, and grant employment authorization incident to status for L-2s,” said Jon Wasden of Wasden Banias in an interview. “It says it right there in the statute. The other issue relates to H-4s whose employment authorization documents expire prior to their H-4 status. They clearly meet the regulatory test for automatic extension of EADs, but the agency was prohibiting them from that benefit.”

Although pleased with the settlement, Wasden criticized USCIS for, in his view, taking a long time to settle the case. “Several weeks prior to filing this suit, we contacted the agency, gave them our arguments and let them know our plans,” said Wasden. “They could have done the right thing early on and avoided four months of lost employment for L-2s and some H-4s. But they refused, and they fought it out. It wasn’t until they were in court and realized they had no defense that they changed course and followed the law. It’s frustrating. People are suffering, and you bring an easily fixable issue to the government, but they refuse to care or do the right thing until the sword of Damocles hangs over their head.”

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