Pandemic-related slow-downs in U.S. Citizenship and Immigration Services processing times have continued late into 2021. USCIS pandemic protocols require limiting the number of individuals in the waiting rooms of USCIS field offices throughout the United States. This, combined with the Trump administration’s mandate to require H-4 and L-2 visa applicants to submit to biometrics when extending their stay (which has since been temporarily suspended), created an enormous backlog in the processing time for Employment Authorization Documents (“EADs”) for H-4 and L-2 spouses.
The current estimated wait time for these benefits is anywhere from 9 to 14 months. This wait time has resulted in numerous individuals losing their jobs, either temporarily or permanently, while waiting for USCIS to adjudicate an EAD renewal application. This problem is compounded by the fact that USCIS will not accept an EAD application filed more than 6 months in advance of the prior EAD’s expiration date—virtually guaranteeing a gap in employment authorization for a period of at least three months, if not much longer. Employers of these individuals have no choice but to terminate their employment until a new card is issued. There is no way to speed up these applications, other than to make an expedite request; however, these expedites are rarely granted, even in cases that meet the very narrow USCIS criteria.
Moreover, USCIS could have alleviated the impact of these delays by granting an automatic 180-day extension of employment authorization to L-2 and H-4 spouses, just as it does for several other EAD categories including those for refugees, asylees, TPS, VAWA applicants, and those with a pending I-485 application, etc. The agency chose not to do so.
To address these delays, the American Immigration Lawyers Association (“AILA”) and its litigation partners filed a lawsuit against USCIS. On Nov. 10, 2021, the parties reached a settlement agreement whereby USCIS has agreed to do the following:
- The agency agreed that H-4 non-immigrant spouses who timely file their I-765 EAD renewal applications and who continue to have H-4 status beyond the expiration date of their EAD qualify for an automatic extension of their employment authorization for 180 days after the prior EAD expires or until the end of their H-4 status, whichever is sooner.
- Even more significantly, the agency agreed to recognize the fact that L-2 spouses are authorized to work incident to status and do not even need an EAD card. This change requires Customs and Border Patrol to modify the I-94 records given to L-2 spouses; however, and they have 120 days to do so. Until then, L-2 spouses with pending EADs will be given a 180-day automatic extension of L-2 employment authorization while a timely filed EAD renewal is pending with USCIS.
The H-4 EAD Provision: Weirdly Limited
The provisions relating to H-4 spousal EADs are limited and disappointing. H-4 spouses are entitled to an EAD valid for up to 3 years, which is the maximum increment of time for which H-4 status can be granted at a time. There are therefore almost never situations where someone’s H-4 EAD expires prior to the end of their current H-4 I-94 record.
The real issue is that most H-4s file an I-539 to extend their H-4 status concurrently with an I-765 to renew their EAD. This provision therefore does not help most people. The only way that this would typically help someone is if they were to use the consular process for H-4 status. For example, if the H-1B principal spouse were to extend their H-1B status, the spouse could then leave the United States and reenter in H-4 status for an additional period of time coterminous with the principal’s H-1B status. (If the H-4 spouse does not have a valid H-4 visa in his or her passport, this would require a trip to the consulate to get a new H-4 visa before returning). This could not be done until the principal’s H-1B extension has been approved. Then, once the H-4 spouse returns on the longer I-94, they will be in a situation where they have an expiring H-4 EAD but an I-94 that is valid for 3 years longer. This would enable them to then file a stand-alone H-4 EAD application that fits within the scope of the 180-day automatic extension provision created by the settlement agreement.
This provision is certainly better than nothing, by far, but it could have been drafted in such a way as to not create such an unnecessary inconvenience for H-4 spouses. It is possible that when USCIS issues guidance to implement this provision, they will choose to broaden it so it is not so unnecessarily limited. However, there is no guarantee that that will happen.
The L-2 EAD Provision: Excellent News
The bigger and more exciting news is related to L-2 spouses. Pub. Law 107-125 created L-2 spouse employment authorization in January 2002. The law as written states that the Attorney General “shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘employment authorized’ endorsement or other appropriate work permit.” This language is ambiguous, but tends to indicate that employment should be authorized incident to status. However, USCIS has always interpreted the law as requiring L-2 spouses to apply for an EAD card.
Interestingly, the Social Security Administration disagrees with USCIS’ reading of the statute. Social Security’s POMS manual states that L-2 spouses are authorized to work incident to status and they can therefore be issued a Social Security Number even absent an EAD card.
Under the new settlement agreement, USCIS will now recognize L-2 spouses as authorized to work even without an EAD card, which will eliminate the wait time entirely for employment authorization. However, the settlement gives U.S. Customs and Border Protection 120 days to create a new I-94 that states that L-2 spouses are authorized to work. Until then, L-2 spouses with pending and timely filed L-2 EAD renewals get a 180-day automatic extension of their EAD validity period.
It remains to be seen how USCIS will implement these rules, particularly as they relate to people who are already in the U.S. in L-2 spousal status and who have not yet obtained an annotated I-94 stating that they can work. It is possible that these individuals may be required to depart the U.S. and reenter in order to get the new, annotated I-94. It is also unclear what this new I-94 will consist of—i.e., whether it will require CBP to go back to issuing paper I-94s in order to annotate them, or whether they have a way of including the annotation in the electronic I-94 record.
What About E-1, E-2, and E-3 Spouses?
It should also be noted that the settlement does not address work authorization for spouses in E-1, E-2 and E-3 status who are eligible for a similar type of employment authorization and whose cases are similarly backlogged.
USCIS has not yet issued any guidance regarding how they will implement these changes, but we anticipate further guidance in the coming weeks.
Our Immigration Law Practice Group includes immigration attorneys that work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer and retain the brightest and best non-U.S. talent.