Latest USCIS Policy Change adds to confusion for employers and applicants

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On November 10, 2021, USCIS settled a lawsuit brought by spouses of highly talented L-1 and H-1B temporary workers who had lost their authorization to work in the United States.  Extensive processing delays had prevented USCIS from granting their timely filed applications to renew their nonimmigrant status as the dependent spouses of the L-1 and H-1B temporary workers before their Employment Authorization Documents (EADs) had expired.  The settlement agreement renews some applicants work authorization to permit them to work while they are awaiting USCIS adjudication of their status extension applications.

The settlement covers the following two categories of nonimmigrant spouses:

• L-2 nonimmigrant spouses of L-1 intra-company executives, managers and specialized knowledge employees temporarily transferred to the United States to work for their multinational company; and
• H-4 spouses of H-1B nonimmigrant professional workers for whom an I-140 immigrant petition has been approved or has been granted H-1B status under the American Competitiveness in the Twenty-first Century Act as amended (AC21).

In effect, USCIS has acknowledged that L-2 visas holders should not have been required to apply for work authorization.  It is incidental to their status as the dependent spouses of foreign nationals with L-1 visas. However, USCIS will still require them to have valid I-94 entry/exit card (now issued electronically by CBP at entry or by USCIS when extending a person’s status while in the country) to continue working.

For H-4 spouses, USCIS threw a “monkey-wrench” into the process by requiring the dependent spouse to have an unexpired H-4 I-94 entry/exit card to qualify for an automatic 180-day EAD extension.

EADs are generally issued for the length of the spouse’s H-4 status, so an EAD extension is not needed until the H-4 status has expired.  But EAD and H-4 extensions require separate applications, which means that the EAD extension application cannot be processed before the H-4 extension has been approved.

Unfortunately, the settlement agreement does not eliminate this problem.

Historically, the L-1 and H-1B visa holders were authorized to continue working after the expiration of their authorized period of stay if they have filed timely status extension applications. But their spouses were not afforded the same privilege.  Their spouses had to stop working on the last day of the authorized stay and could only resume their work after their extension applications were approved.

The settlement agreement should have accorded this privilege to the dependent spouses too, but it didn’t.

Settlement Agreement.

Automatic renewals of employment authorization for applicants with H-4 status.  H-4 nonimmigrants who timely file EAD renewal applications and continue to have H-4 status beyond the expiration date of their employment authorization will automatically qualify for an extension.

This means that the spouse whose EAD status expires before his/her H-4 status extension application is approved is still out of luck.  The agreement should have allowed the spouse to continue working if timely extension applications for H-4 and EAD are filed prior to the expiration of the current EAD to avoid this problem.

The agreement provides that the EAD extension will terminate when their H-4 status ends, or 180 days from the expiration date on the face of their employment authorization document, whichever occurs first.

Unless you have a valid I-94 reflecting H-4 status beyond the EAD expiration date, you are not eligible. Filing an I-539 extension of stay application to extend your H-4 status does not extend your I-94 validity until you receive an approval of the I-539 extension application which contains the I-94 extension.

Employment Authorization Incident to L-2 status.  L-2 nonimmigrant spouses who have employment authorization incident to their status that will expire before their L-2 status ends, and file timely renewal applications, will automatically qualify for an EAD extension.  The extensions will terminate the earlier of: when their L-2 status ends, or 180 days from the expiration date on the face of their employment authorization document, whichever occurs first.

Caveat

The agreement includes the following stipulations which indicate that the concessions DHS is making may not be permanent:

“This Settlement Agreement does not limit DHS or any of its component agencies from interpreting any of their regulations in accordance with the Immigration and Nationality Act,” and

“This Settlement Agreement does not limit USCIS’s authority to implement new regulations, policies or practices concerning employment authorizations for qualifying noncitizens with valid H-4 status or valid L-2 status. Furthermore, this Settlement Agreement may be superseded by future regulatory action or Act of Congress.”

Conclusion

The only reason we are even discussing this issue is USCIS’s failure to timely process extremely straight forward spousal H-4 and L-2 applications and related I-765 EAD applications at the same time. If USCIS would timely adjudicate what they are already paid substantial amounts of money to do, we would not need lawsuits. USCIS simply needed to agree to timely process these applications and stop adding insult to injury by further complicating what Congress legislated. The nonimmigrant employees and the employers should not be prejudiced by USCIS’s failure to do its job.

It should be noted that this was not a Court Order but rather a settlement agreement reached between USCIS and the plaintiffs in this case. As pointed out above, USCIS apparently is not bound by anything in the settlement agreement as the terms of the agreement clearly stipulate that USCIS may change any aspect of the agreement by implementing new regulations, policies or practices with regards to H-4 and L-2 employment authorization in the future.

Once again, a golden opportunity to correct the injustices befalling highly talented and much needed L-2 and H-4 spouses and their US employers may have been missed.

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Prakash Khatri is an immigration lawyer with a national practice. (www.khatrilaw.com ). He has dedicated his career to understanding and resolving problems faced by individuals, corporations and law firms dealing with complex U.S. immigration related issues. In 2003, he was appointed by President George W. Bush as the nation’s first Citizenship and Immigration Services Ombudsman at the U.S. Department of Homeland Security.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.