Biometrics for H-4, L-2 & E Suspended Through 09/30/2023

USCIS announced today that it is extending suspension of the biometrics submission requirement for certain dependent applications through 09/30/2023.  Suspension was previously scheduled to end on 05/17/2023.  Specifically, biometrics are not required for applicants filing Form I-539 requesting an extension of stay in or change of status to H-4, L-2, or E nonimmigrant status.  Applicants should not pay the $85 biometrics fee in connection with these applications.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Automatic Extensions of EAD Lengthened to 540 Days

According to an advanced copy of a temporary DHS regulation, automatic extensions of certain employment authorization documents (EADs) will be extended from 180 days to up to 540 days beginning May 4, 2022 until October 26, 2023.  After October 26, 2023, automatic extension will revert to the current 180 days.  

Under the current USCIS policy, certain EAD applications will enjoy 180-day of automatic extensions until the application is approved or denied.  However, as many applicants may have noticed, the current processing times of EAD applications are extremely long.  As a result, many applicants lose their eligibility to work legally in the United States and their livelihood is jeopardized.

The new policy aims at addressing the current long processing times of the EAD applications by providing longer periods of automatic extension to applicants so that they may continue to work legally.

Who may benefit from this new policy?  Generally, the 540 automatic extension will be available to applicants who have a pending I-765 EAD application between May 4, 2022 and October 26, 2023. 

 Applicants will not receive a new receipt notice or separate documents to indicate  the additional 360 days of extension.  They may continue to use the Form I-797C notice with 180-day extension as proof of their eligibility to work. 

For those applicants who filed their EAD extension application before May 4, 2022, and their 180-day automatic extension has already expired, they may still be eligible for the 540-day extension.  Their employment eligibility will resume on the effective date of the new regulation on May 4, 2022.   These applicants will be eligible to work for 540 days from the expiration date of their expired EAD card.

It should be noted that H-4 and L-2 spouses may not benefit from this new policy if their I-94s have already expired. 

The following categories of I-765 applicants are eligible for the new 540-day extension: 

(a)(3) Refugee; 

(a)(5) Asylee;  

(a)(7) N-8 or N-9; 

(a)(8) Citizen of Micronesia, Marshall Islands, or Palau;

(a)10) Withholding of Deportation or Removal Granted; 

(a)(12) Temporary Protected Status (TPS) Granted; 

(a)(17) Spouse of principal E nonimmigrant with an unexpired I-94 showing E nonimmigrant status; 

(a)(18) Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 nonimmigrant status2

(c)(8) Asylum Application Pending

(c)(9) Pending Adjustment of Status under Section 245 of the Act

(c)(10) Suspension of Deportation Applicants (filed before April 1, 1997) / Cancellation of Removal Applicants / Special Rule Cancellation of Removal Applicants Under NACARA

(c)(16) Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)

(c)(19) Pending  initial application for TPS where USCIS determines applicant  is  prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”.

(c)(20) Section 210 Legalization (pending I-700)

(c)(22) Section 245A Legalization (pending I-687)

(c)(24) LIFE Legalization

(c)(26) Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status

(c)(31) VAWA Self-Petitioners

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

Breaking news! H-4 EAD Gets 180-day Extension; L-2 Gets Automatic Work Authorization

American Immigration Lawyers Association (AIlA) reports that DHS has entered into an agreement with AILA and its litigation partners that provides structural changes for H-4 and L-2 spouses in so far as their Employment Authorization Document (EAD) is concerned:

 

H-4 Spouses Will Get 180-day Automatic Extension of EAD

USCIS will offer 180-day automatic extension of EAD in the I-797 filing receipt notice provided:

- H-4 applicant has an unexpired I-94 showing H-4 status

- Filed a timely I-765 EAD extension application

- The extension will end on the earliest of:  End date of H-4 status, 180 days from the expiration date of the previous EAD, and the decision date (approval or denial) of the I-765 application.

 

L-2 Spouses Will be Authorized to Work Without EAD

USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status.  The CBP will revise the I-94 form to show that applicant is a L-2 spouse so that can be used as Section C document for I-9 purposes.  

 

The settlement provides that DHS/USCIS will have 120 days to implement that above changes.  Applicants should stay tuned for further announcement. 

This settlement is the result of litigation based on long delayed processing times for the processing of applications for employment authorization. (Shergill, et al. v. Mayorkas, 11/10/21)

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

DHS 'Aspires' to Scrap H-4 EAD by 2020

Many that enter the U.S. for temporary employment under the H-1B specialty occupation visa bring their dependent spouse with them in H-4 status. Currently, H-4 visa holders are eligible for an EAD under the Employment Authorization for Certain H-4 Dependent Spouses rule. These dependents can file form I-765 Application for Employment Authorization under the (c)(26) category and obtain authorization to work in the U.S.

However, the DHS has indicated for a while that it will scrap this immigration benefit. It has already submitted a rule titled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization to the Office of Budget Management and Office for Information and Regulatory Affairs for review in February 2019.

DHS is the defendant in a case (Save Jobs USA v. Dep’t of Homeland Sec) challenging the H-4 EAD rule. DHS requested to indefinitely postpone the oral argument, arguing that the anticipated proposal to remove this rule altogether would render the case moot.

According to DHS, the notice of proposed rulemaking for eliminating the H-4 EAD category is expected to come forward in the Spring of 2020. If the rule moves forward toward implementation, H-4 dependents will not be able to legally work in the U.S. 

For those H-4 spouses who are eligible for H-4 EAD, they should file or extend their EADs immediately. 

Last Chance to Apply for H-4 EAD Now

If you are holding H-4 dependent status and need employment authorization to work or to apply for a social security number, do not wait any longer and submit the application now!  

As reported before, the Trump Administration intends to cancel H-4 visa holders' EADs and has already started rule making process to do that.  "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization," was sent to the Office of Management and Budget for review.  After review, the rule will be published in the Federal Register for public comments.  Within a few months, it could become effective.

Here is the absract of the rule - 

On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.  DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule.  DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

Regulation Cancelling H-4 EAD in Final Review

Senior DHS leadership is conducting final review of a proposed rule aiming at the elimination of employment authorization (EAD) for H-4 dependent workers, according to the most recent status report submitted by DHS to the D.C. Federal District Court.   

In February 2018, DHS represented that it had plans to issue a notice of proposed rulemaking to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of people their eligibility for employment authorization.

Right now, the proposed rule is at is final review stage. Once finalized, it will be submitted to the Office of Management and Budget for review.  After OMB review, the proposed rule will be published in the Federal Register to allow the public to make comments.  The comment period will last about 30 to 60 days before the regulation becomes final.  Hence, realistically speaking, H-4 dependents should be able to file for their EAD applications for at another 60 - 90 days. It is strongly recommended that they file their applications as soon as possible.  

EAD for Abused Spouses of Non-immigrant Workers

Domestic abuse can leave someone feeling trapped. The feeling is amplified when the victim is in a foreign country holding a temporary visa and dependent on an abusive spouse for immigration status and support.

The Violence Against Women and Department of Justice Reauthorization Act amended immigration law to include a supportive measure, Section 106, for spouses who face battery and extreme cruelty. The law grants an Employment Authorization Document (EAD) to the abused spouses of the following categories of nonimmigrants: A, E-3, G, H. This opens up more options for independence away from the abusive spouse. 

Applicants may request for employment authorization using form I-765V. They must be able to prove several things. One is that they are married to a qualifying nonimmigrant.  A legally valid marriage certificate should be sufficient. Their spousese must fall under the aforementioned categories of nonimmigrants.  If applicants are no longer married to the abuser, they may still be eligible if it must be shown that their spouse died within two years of the I-765V filing, lost their nonimmigrant status because of domestic violence, or the marriage ended within two years of the filing because of the related abuse. Also, they must show they were also last admitted to the States as a dependent nonimmigrant following his/her spouse under A, E-3, G, or H status.

The applicants must also provide sufficient evidence that they or their child were abused during this marriage. Proof of abuse must also be provided to support the application.  Abuse evidence can take the form of protection orders, police reports, court records, medical records, reports from social services agencies, and a signed statement from the abused spouse detailing the abuse. Signed affidavits from third parties who have personal knowledge of the abuse may also be submitted. Lastly, they must reside in the United States.

The required documentation and evidence are to demonstrate marriage, qualifying nonimmigrant status of both applicant and abusive spouse, the existence of abuse, and a timely application. There is no filing fee for form I-765V.  

H-4 EAD Rule Making Process Delayed Till June 2018

The current H-4 EAD program will continue to be valid until at least June 2018, according to a status report submitted to the court in connection with the ongoing federal litigation in the case of Save Jobs USA v. DHS.  Originally, DHS represented that it will begin the formal rule making process to change the existing H-4 EAD rule by February 2018.  DHS is delaying the rule making process so that they may perform an economic analysis to support certain revisions. Presumably the economic analysis is to assess the impact of the H-4 EAD to the U.S. economy in general and also the American workers' employment opportunities in particular.  Based on this new development, the case will likely to be  held in abeyance till the new rule is published.  H-4 dependents should be able to continue applying for EADs for the time being, unless DHS issues additional policy changes in the interim.  Approximately 104,750 H-4 spouses have received EAD since the program started in 2015.

H-4 Spouses May File for EAD After District Court Denied Injunction

USCIS began to accept applications for Employment Authorization Document (EAD) by eligible H-4 spouses of H-1B employees on May 26, 2015.  The original proposed rule-making was published in May 2014, but it was not finalized until the executive actions announced by President Obama on November 2014.  

A lawsuit filed by a group of  former technology workers at Southern California Edison attempted to block the implementation of the H-4 EAD program. The new rule went into effect as scheduled after District Court Judge Chutkan in Washington, DC, denied the plaintiffs' request for a preliminary injunction in SAVE JOBS USA vs. DHS.  These former technology workers alleged that they will suffer irreparable harm if EADs are issued to the H-4 spouses.  Judge Chutkan reasoned that the allegations are speculative as there is no evidence at this stage to indicate that the H-4 spouses will ever apply for IT jobs or apply for jobs at the former employer of the plaintiffs in California.  Hence, preliminary injunction was denied.  

Even so, it is still wise for eligible H-4 spouses to apply for EADs as soon as possible.  Litigation is still ongoing and the outcome is unpredictable.  It is important to submit legally sufficient applications to avoid delay or denial.  Documents regarding the status of the H-1B/H-4 couple, identification documents, photos, proof of I-140 approval or AC-21 eligibility, etc., are required. Any questions can be directed to our office.   

Eligible H-4 Dependent Spouses May Apply for EAD starting May 26, 2015

USCIS just announced today that certain eligible H-4 dependent spouses of H-1B workers may apply for Employment Authorization Document (EAD) as of May 26, 2015.  Eligible H-4 dependent spouses include those who are seeking employment-based lawful permanent resident (LPR) status. Please also see our previous post for more details.