Tag Archive for: H-4

David Isaacson

Canada Begins New Program for Holders of U.S. H-1B Visas – And They Really Do Mean H-1B Visas, Not H-1B Status, Although Family Members Need Not Have Any Kind of H-4

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Update: on July 18, 2023, IRCC posted an announcement that the cap of 10,000 applications for the new program had been reached on July 17 and the program was closed. So the below post may be only of theoretical interest unless Canada reopens the program at a later date.

In a previous blog post, I described a new Canadian program for holders of H-1B visas, and flagged the issue that the initial announcement of the program and backgrounder issued by Immigration, Refugees and Citizenship Canada (IRCC) referred to “H-1B specialty occupation visa holders in the US” in such a way as to suggest that an actual H-1B visa stamp was necessary. As I explained in that post, there are multiple circumstances under which one can be in valid H-1B status, but not possess an H-1B visa stamp as such, such as in the event of a change of status or extension of stay. At the time, it was unclear whether this seeming requirement for a visa stamp was merely an imprecision in language. There were also other issues left open by the announcement.

IRCC has now published the application guidance for the new program, and has also posted the underlying temporary public policy established under section 25.2 of the Immigration and Refugee Protection Act. (The temporary public policy is dated June 23, but was only made public on its effective date of July 16.) Unfortunately, it appears from the temporary public policy and the application guidance that IRCC will indeed be requiring principal applicants for an open work permit under the new program to have an H-1B visa stamp, and not merely H-1B status, as well as reside in the United States. The good news is that there is no similar requirement that dependents of principal applicants have either H-4 visas or H-4 status, and indeed some family members who could not qualify for H-4 status will be eligible for the new program.

Part 1, section 1(iii.) of the temporary public policy specifies as one of the conditions to be met that an applicant for a work permit under the policy “holds an H-1B (Specialty Occupations category) visa issued by the United States of America that was valid at the time the work permit application referred to in (i) was submitted”. This reference to a visa, like the one in the original IRCC announcement, could potentially be read as ambiguous, but the application guidance specifies that a visa is a separate document required in addition to an H-1B approval notice and potentially Form I-94. The guidance states:
To apply, you’ll need
• a copy of your current H-1B visa
• Form I-797/I797B, Notice of Action
o This is a letter from the US government confirming your H-1B application was approved.
• proof that you live in the US, such as
o Form I-94, Arrival/Departure Record
o a recent utility bill
o an income tax report
o any document that proves you live in the US

The separate bullet point for “a copy of your current H-1B visa” implies that neither the Notice of Action showing approval of an H-1B application, nor a Form I-94, will suffice without the visa. It is not clear why IRCC has imposed this requirement, but it appears that they have done so.

One piece of good news, however, is that there is no similar requirement for family members of principal H-1B applicants. Indeed, not only are family members of principal applicants not required to have an H-4 visa stamp, they are not even required to have H-4 status, or be eligible for H-4 status. As long as they are a family member of an approved principal applicant under the definition contained in subsection 1(3) of the Immigration and Refugee Protection Regulations (IRPR), and reside in the United States, that is sufficient.

The definition of a family member under subsection 1(3) of the IRPR is somewhat broader than the definition of a family member for H-4 purposes under U.S. law. The IRPR definition includes “the spouse or common-law partner of the person” (here, of the principal applicant); “a dependent child of the person or of the person’s spouse or common-law partner”; or “a dependent child of a dependent child” of the person or the spouse or common-law partner. Thus, common-law partners of H-1B visa holders, children of common-law partners of H-1B visa holders, and some dependent grandchildren of H-1B visa holders and their spouses or common-law partners may be eligible for the new Canadian program although they would not be eligible for H-4 status.

Moreover, the definition of a child for these purposes does not cut off at age 21, as it does for H-4 purposes under INA 101(b)(1), 8 U.S.C. 1101(b)(1). Rather, under section 2 of the IRPR, a dependent child includes one who “is less than 22 years of age and is not a spouse or common-law partner, or . . . is 22 years of age or older and has depended substantially on the financial support of the parent since before attaining the age of 22 years and is unable to be financially self-supporting due to a physical or mental condition.” Thus, some 21-year-old children or disabled older children of H-1Bs, who would not be eligible for H-4 status, may be eligible for the new Canadian program, even if they have had to change to some other nonimmigrant status or are stuck in limbo as derivative beneficiaries of long-pending applications for adjustment of status, as long as they reside in the United States. 

Another open question I had raised in my prior blog post was how IRCC was going to allocate the 10,000 available numbers for principal applicants under the new program. Now that the effective date has passed without any announcement of a lottery or similar allocation mechanism, it appears that IRCC is simply going to allocate the numbers to the first 10,000 approved applications.

A third open question at the time of the announcement resulted from language on an IRCC guidance page for high-skilled workers that suggested applicants might want to consider the new program if “your US work visa is expiring soon”. Fortunately, however, nothing in the temporary public policy or the application guidance indicates that any particular date of H-1B expiration is required. The guidance page notwithstanding, even someone with, say, two and a half years left out of an H-1B petition and visa with three years validity, should qualify for the new program.

The new Canadian program has attracted significant positive media attention, which has understandably focused on the broader picture rather than details such as the distinction between H-1B visas and H-1B status. I do not mean to suggest, by highlighting this seemingly arbitrary distinction, that it should overshadow the other positive aspects of the program, or the implications that the program has for U.S. immigration policy. And it is good to see that IRCC will not be requiring dependent family members to meet U.S. requirements for an H-4 in order to benefit from the new program. But it would be even better if IRCC could remove the arbitrary exclusion of those who have changed status to H-1B or otherwise lack a valid H-1B visa, and open up the temporary program to H-1B nonimmigrants who reside in the United States in H-1B status even if they do not have H-1B visa stamps.

Cyrus Mehta

The Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged

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Cyrus D. Mehta

The USCIS has been processing employment authorization requests for H-4 and L-2  spouses so slowly that they have been rendered virtually useless. By the time the applicant receives the employment authorization document (EAD) after 10 months, the job offer no longer exists. The experience is even more harrowing when the spouse begins working under the first EAD and has to apply for a renewal. By the time the renewal EAD comes through, the spouse would have been forced to stop working after the prior EAD expired and often loses her job. Most H-4  spouses who have availed of the EAD are mainly women and  spouses of Indian born H-1B visa holders who are caught in the crushing India employment-based backlogs under the second and third preferences.

Following a recent settlement in Shergill v. Mayorkas,  USCIS announced on November 12, 2021, that certain H-4, E, or L dependent spouses will qualify for an automatic extension provided under 8 CFR § 274a.13(d) if certain conditions are met.

The new policy provides that certain H-4, E or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly file application to renew their H-4, E or L-based EAD expires, and they have an unexpired I-94 showing their status as an H-4, E or L nonimmigrant. The policy further provides that E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to file Form I-765 for an EAD but may still do so if they choose to request an EAD. Still, the E and L dependent spouse may only qualify for an automatic extension if they have an unexpired valid E-2 or L-2 status.

Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed employment authorization document (EAD) renewal application, and facially expired EAD may be acceptable to evidence unexpired work authorization for employment eligibility verification (Form I-9) purposes.

Although this new policy is a positive step, as a practical matter, many H-4 spouses may not be able to avail of the automatic extension if they are unable to demonstrate an H-4 status beyond the expiration of their existing EAD. Most H-4 statuses and EAD end on the same date.

Even if an H-1B extension is filed on behalf of the principal spouse under premium processing six months before the existing H-1B status expires, the USCIS no longer processes the extension of the H-4 status in an expeditious manner. Thus, even if the H-1B status is renewed under premium processing within 15 days for an additional 3 years,  the H-4 status continues to remain pending and may or may not get approved before the expiration of the current H-4 status. If the H-4 status is not renewed prior to the expiration of the current H-4 status, the spouse will not be able to avail of the auto extension under the new policy.

It would thus behoove the USCIS to courtesy premium  process the H-4 status extension request along with the H-1B premium request. This used to be done prior to the imposition by the Trump administration of a mandatory biometrics appointment for an extension request filed by the spouse.  As a result of the new biometric requirement, the H-4 spouse’s extension request was  no longer processed along with the H-1B premium request.  Although the biometric requirement has been eliminated for H-4 spouse extension requests, the USCIS continues to process these cases at a snail’s pace. It is difficult to understand why the USCIS is unable to process the H-4 request along with the H-1B premium request at the same time as was done before the imposition of the biometric requirement.

Another way to get around the limitation of having H-4 status beyond the EAD is for the H-4 spouse to travel overseas and return with an I-94 that would have the same validity as the principal spouse’s H-1B status. However, if the H-4  spouse needs to obtain a new visa stamp, it is difficult to obtain consular appointments timely as a result of Covid-19.

Another work around would be for the H-4 spouse to go to Canada for less than 30 days and be readmitted under  automatic visa revalidation provided for trips to Canada or Mexico that are less than 30 days. The difficulty with this strategy, though, is that the CBP often admits the H-4 spouse under the same period of the existing status instead of admitting the spouse for an extended period that  would be coterminous with the H-1B spouse’s new status.

L-2 and E-2 spouses are in a better situation that H-4 spouses. INA 214(c)(2)(E) provides  statutory authority for dependent spouses of L nonimmigrants to be granted work authorization. INA 214(c)(2) provides similar work authorization for dependent spouses. Notwithstanding this statutory authorization that took effect on January 16, 2002 providing for work authorization incident to status,  USCIS was still insisting that L-2 and EAD spouses obtain an EAD through a policy memo authored by William Yates dated February 22, 2002, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Authorization for E and L Nonimmigrant Souses, and for Determinations on the Requisite Employment Abroad for L Blanket Petitions.” (Yates Memo).  The November 12, 2021 guidance has now rescinded the Yates Memo.

As a result of being recognized to be work authorized incident to status, L-2 and E-2 spouses will be able to work when their L-2 or E-2 status is extended. CBP will notate the I-94 to distinguish the L-2 or E-2 spouse from E and L children. Unlike the H-4 spouse who will need to apply for an EAD based on status that already extends beyond the EAD extension request, the L-2 spouse will be able to work as soon as the E-2 or L-2 status is granted. Similarly, the spouse who is admitted after travelling to the US in L-2 or E-2 spouse will also be issued an I-94 with a similar notation from the CBP and be work authorized after admission in that status. However, like with the H-4 spouse, when the L-2 spouse applies for an extension of that status, there will be no basis for an automatic extension of  work authorization until the L-2 status is approved.

On November 18, 2016, DHS promulgated the automatic extension of EAD regulation at 8 CFR 274a.13(d), which took effect on January 17, 2017. 8 CFR 274a.13(d) provides the legal underpinning for November 12, 2021 policy.  An applicant is eligible for automatic extension if the EAD renewal is timely filed and based on the same employment authorization category as shown on the face of the expiring EAD. See 8 CFR 274a.13(d)(1)(i) and (ii). Under 8 CFR 274a.13(d)(1)(iii) automatic extension may also apply where the EAD renewal application is “[b]ased on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before  adjudication of the renewal application, …. As may be announced on the USICS Web site.”

The page on the USCIS Website listed 15 categories for automatic extension of their employment authorization or EAD. However, the November 12, 2021 USCIS Policy Memo acknowledges that E and L as well as H-4 spouses were missing from this list, as follows:

These broad categories were not included because at the time the automatic extension authority was established in 2016, USCIS determined that these applicants are in a category that first requires adjudication of an underlying application before their EAD renewal application can be adjudicated.[citation omitted]. While that is a permissible interpretation of the regulation, upon further review and consideration, USCIS recognizes that this interpretation does not contemplate the situation where the E, L, and H4 dependent spouse has already been granted a new period of authorized stay and such individual is eligible for employment authorization past the expiration of his or her EAD while the renewal Form I-765 application is pending. Under this scenario, the possible risk the provision at 8 CFR 274a.13(d)(1)(iii) sought to avoid—the risk that a Form I-765 renewal applicant’s eligibility for employment authorization will lapse during the automatic extension period—is not present. As such, it is reasonable for USCIS to expand the list of categories eligible to receive automatic EAD extensions to include this narrowly defined category of E, L, and H-4 dependent spouses to mitigate the risk of experiencing gaps in employment authorization and documentation while their renewal Form I-765 is pending, in light of their continued employment eligibility past the expiration date of their EAD.

The USCIS believes that this change in interpretation is permissible under 8 CFR 274a.13(d)(1)(iii) that speaks broadly of “class” and “category.” As these terms are undefined and thus ambiguous, under the broad deference courts have granted to a government agency to interpret its own ambiguous regulation, see Auer v. Robbins, 519 US 452 (1997) as modified by Kisor v. Wilke, 588 US ___ (2019), USCIS believes it has the discretion to interpret these terms and tailor designated categories to emerging circumstances and to fulfill the primary purpose of the EAD auto-extension.

While one agrees that USCIS does have discretion to reinterpret 8 CFR 274a.13(d)(1(iii) to include auto extensions for H-4, L-2 and E-2 spouses, this is not the most satisfactory outcome and should be challenging the USCIS to do more.

For starters, if the USCIS processes extension requests of H-4, L-2 and E-2 statuses more rapidly, this problem will be resolved. It should not be taking upwards of 6 months to process such status extension requests when the biometric requirement has been done away with. The Edakunni v. Mayorkas lawsuit seeks to force USCIS to speed up processing times.   USCIS can include courtesy premium processing of H-4, L-2 and E-2 status request  applications that  are part of a request for premium processing of the principal spouse’s H-1B, L-1 or E petition. Also do not forget that Congress in HR 8837 has authorized premium processing of many more petitions and applications, including applications to change or extend status as well as applications for employment authorization.

More important, the USCIS need not be cabined by the restrictive language in 8 CFR 274a.13(d)(1)(iii) which provides for automatic extension where the EAD renewal application is “[b]ased on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before  adjudication of the renewal application.” While the USCIS has threaded the difficult needle in its November 12, 2021 policy by justifying that 8 CFR 274a.13(d)(1)(iii) is nevertheless applicable if there is already an underlying status, the USCIS has authority under the INA to craft a whole new regulation that does not depend on automatic extension only if there is an underlying L-2, H-4 or E-2 status.

Furthermore, 8 CFR 274a.13(d)(1)(iii) can potentially be challenged as being inconsistent with INA 214(c)(2)(E) and INA 214(e)(2) that provide work authorization incident to status to L-2 and E-2 spouses. Nowhere does it  state in these INA provisions that a spouse who has been admitted in L-2 or E-2 status  must remain in status in order to avail of an automatic extension of work authorization when applying for an extension of that status. Although there is not direct INA reference for H-4 authorization incident to status, the H-4 EAD rule is based on the general authority given to the DHS under INA 103(1) and 274A(h)(3)  that allows it to grant work authorization to any noncitizen. Even under these general provisions there is no requirement that there must be an underlying nonimmigrant status in order to avail of automatic work authorization extension. Even if INA 214(c)(2)(E) and INA 214(e)(2) can be read to mean that a spouse is precluded from availing of an auto extension once the status has expired, 8 CFR 274a.13(d)(1)(iii) might still be inconsistent with the general authority to provide work authorization under INA 274A(h)(3).

Under its authority under INA 274A(h)(3),  DHS may wish to promulgate a regulation similar to 8 CFR 274a.12(b)(20) that provides for an automatic extension of work authorization for 240 days when a petition to extend nonimmigrant status has been timely filed on behalf of a nonimmigrant through the same employer prior to the status expiring. The 240 day automatic extension will be denied if the petition requesting the extension is denied prior to the 240 days.  The spouse should also be able to avail of a similar period of 240 days of automatic work authorization even if the underlying H-4, L-2 or E-2 status has expired so long as the request was made before the status had expired.  If the underlying request for extension of status is denied prior to the 240 days, the automatic work authorization will be denied.

While the new H-4, L-2 and E-2 work authorization policy of November 12, 2021 is a step in the right direction, it should  not become the permanent policy of the USCIS as it is far from perfect. As long as the USCIS delays in the processing of routine requests for extension of status and work authorization continue to persist, the regulations need to be changed in order to allow spouses to continue working regardless of whether there is an underlying nonimmigrant status or not.

 

Cyrus Mehta

Coping with Delays Facing H-4 and L-2 Spouses When They Have a Pending Adjustment Application – Part 2

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By Cyrus Mehta and Isabel Rajabzadeh*

Although H-4 and L-2 extensions continue to be delayed since our  last blog  “Coping with Delays Facing H-4 and L-2 Spouses”,  we highlight another issue,  which adds further hardship for H-4 and L-2 spouses faced with unjust processing delays. In October 2020, the EB-3 Dates for Filing in the Visa Bulletin advanced significantly, which allowed many born in India to file Form I-485, Adjustment of Status (AOS) applications. The surge in AOS cases, coupled with the H-4/L-2 processing delays, have left many with the inability to travel abroad as they await both their H-4/L-2 extension and Advance Parole (AP) processing. This blog tackles the threat to abandonment of AOS when traveling internationally while AP and H-4/L-2 are processing. We also discuss the complex interplay with employment authorization for H-4/L-2 spouses who have pending AOS applications.

Preserving H-4 and L-2 Status When an AOS is Pending

Since the H-1B and L visas allow for dual intent, it is possible to maintain H or L nonimmigrant status while an AOS application for permanent residence has been filed.

Due to the delays in the processing of H-4/L-2 extensions and requests for EAD, travelling abroad poses a conundrum. In order to preserve the AOS that is still processing, one needs to have either AP or valid H-4/L-2 status before leaving. Accordingly, 8 CFR 245.2(a)(4)(ii)(B)-(C) outlines two distinct pathways. Under (B), it allows those with approved AP to leave the country and then subsequently return in AP without abandoning their AOS, absent any specific situations outlined in the regulation. Under (C), the same is true for those who leave in H-4/L-2 status and return in H-4/L-2.

In 2000, the Cronin Memo was published and clarified that although an H-1B or L is considered  to be paroled after entering the United States via AP, he/she is still able to apply for an extension of H-1B or L if there was a valid and approved petition. Upon the granting of the H-1B or L extension, the grant of parole would be terminated, and the H-1B applicant would then be admitted into the relevant H-1B status. Although the Cronin Memo contemplates one who is already in H-1B and L status before traveling abroad and being paroled via AP, it could also apply to one who has a pending extension of  H-1B or L-1 status application and who traveled abroad under AP and was paroled into the US. Likewise, upon the approval of the H-1B or L-1 request, the parole would be terminated, and the beneficiary would be admitted in H-1B or L status. This allows the H-1B beneficiary to travel abroad while simultaneously preserving the AOS when both the H-1B and AOS are pending.

There is an inherent vagueness as to whether the Cronin memo applies to derivatives since H-4s and L-2s are not mentioned in the memo in respect to this issue. One may however argue, through anecdotal experience, that the Cronin Memo should apply to H-4s and L-2s and therefore, the H-4/L-2 should be able to enter the United States in AP and be able to switch to H-4/L-2 status once the H-4/L-2 extension is approved.

Preserving Adjustment of Status When Advanced Parole and H-4 are Pending 

What happens when an H-4 has a pending AOS and has not received AP or H-4 approval but wants to travel based on an emergency? This issue is two-fold and is specifically applicable to those whose prior H-4/L-2 statuses have expired and have timely filed their extensions but still await processing. As mentioned before in our prior blog, although the H-4 can get a visa stamp at a US consulate, the AOS may be deemed abandoned if the H-4 left the US without H-4 status or AP.

In this scenario, the only recourse for the H-4 is to apply for an emergency AP by calling the USCIS 800 number to schedule an appointment with the local USCIS office, however, it is not definite that one will be able to connect to a live-person, let alone convince the USCIS that the emergency qualifies for expeditious AP processing.

Does an L-2 Spouse Need an EAD?  

Out of the many downfalls of the H-4/L-2 processing delays, one of the most significant is the Employment Authorization Document (EAD) processing gaps afflicting families around the nation. At large, this issue has subjected many spouses and their families to financial struggle, and it remains a leading issue that the USCIS and the Biden administration must immediately resolve. The hardship is compounded by the fact that there are delays in the processing of the EAD under both the AOS and the H-4/L-2.  Nonetheless, there may be an arguable legal basis for an L-2 spouse to engage in employment without obtaining an EAD.

In the Matter of Do Kyung Lee, the Board of Immigration Appeals (BIA) held that employment authorization is incident to E-2 status. INA 214(e)(6) explicitly states that an E-2 spouse shall be authorized to engage in employment.  In this unpublished  decision, the BIA reasoned that the regulation at 8 CFR 274a.12(c)(2) only specified that the dependent spouse and child of an E-1 visa holder must apply for work authorization, but the same regulation did not specifically state that the spouse of an E-2 must do the same. The Court held that since INA 214(e)(6) specifically authorized the E-2 spouse to engage in employment, the E-2 spouse’s failure to apply for an EAD did not result in a violation of status. Based on the reasoning of this BIA decision, the same logic can be applied to L-2 spouses since INA 214(c)(2)(E) explicitly authorizes L-2 spouses to engage in employment. The regulations at 8 CFR 274a.12 do not have a specific category for L-2 spouses, and USCIS requires L-2 spouses to use the catchall reserved provision under 8 CFR 274a.12(a)(18).

Nevertheless, this is still a gray area and E-2 and L-2 spouses are therefore still recommended to apply for an EAD. Even if the reasoning of this unpublished BIA decision is accepted by the USCIS, a lack of EAD could potentially trigger I-9 noncompliance issues with respect to the employer as ICE may not recognize the holding of an unpublished BIA decision.

The reasoning of this BIA decision is not appliable to H-4 spouses as there is no explicit INA provision that specifically authorizes H-4 spouses to engage in employment. The Department of Homeland Security (DHS) under the Obama administration specifically created a regulation which authorizes EAD for an H-4 under 8 CFR 274a.12(c)(26), based on implied authority in the INA to issue work authorization to any class of noncitizens. The Trump administration tried to unsuccessfully rescind the rule as it was hostile towards H-4 EADs, but could not get it past the Office of Management and Budget. The Trump administration then imposed the biometric requirement for every I-539 extension, which in turn delayed the grant of the H-4 EAD. The pandemic that followed in March 2020 caused further delays and backlogs.

Conclusion

We reiterate our request that the Biden administration remove the biometric requirement imposed by the prior Trump administration when an I-539 application is filed. The justification by the Trump administration, as revealed in a recent WSJ article, that the biometric requirement was necessary so that dependents did not misrepresent themselves is spurious. Until 2019, there was never a biometric requirement when dependents filed I-539s, and there were no widespread incidents of such misrepresentations. Many of these dependents were already vetted when they obtained H-4 and L-2 visa stamps at US consulates. Moreover, subjecting infants and toddlers seeking H-4 and L-2 extensions to this is downright cruel. Eliminating this unnecessary biometric requirement will go a long way in eliminating the delays facing H-2 and L-2 spouses as they can then be processed under the premium processing request filed through the principal spouse’s H-1B or L-1 petition. The DHS should also initiate premium processing for EAD requests since Congress authorized additional premium processing last year. Finally, since INA 214(c)(2)(E) explicitly authorizes an L-2 spouse to engage in employment, what is the need to require the L-2 spouse to go through the lengthy process of applying for an EAD? Under the logic of the BIA decision in Do Kyung Lee, an E-2 or L-2 spouse who engages in employment without an EAD will not be viewed as engaging in unauthorized employment. Therefore, even if the Biden administration cannot speed up EAD processing quickly, it can officially pronounce that L-2 and E-2 spouses need not obtain an EAD.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

 

Cyrus Mehta

Coping with Delays Facing H-4 and L-2 Spouses

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By Cyrus D. Mehta & Isabel Rajabzadeh*

 In March 2019, the Trump administration implemented a new biometrics requirement for some employment-based and nonimmigrant dependents. H-4 and L-2 dependents must complete biometrics each time an extension of status is filed on Form I-539. This superfluous mandate, paired with the already backlogged queue due to Covid-19 processing delays, has resulted in dependent extensions being processed months behind their principal applicants. Since most of the people impacted by the delays are H-4 spouses, we refer more to them than L-2s although both face similar issues.

Spousal processing times are left estranged with some H-4 extensions taking over a year while the H-1B option of 15-calendar-day premium processing remains in full effect. To shed light on how absurd these delays truly are, it is crucial to note that most dependents have at one time or another provided biometrics in the past to the U.S. Citizenship and Immigration Services (USCIS) for an unrelated immigration benefit, or during visa consular processing. Nonetheless, spouses are losing their work authorization and are also inhibited from travelling abroad while their H-4 extension requests are pending because of these illogical delays.

There is no need for this Trump era senseless H-4 and L-2 biometrics requirement to remain as it was part of the prior administration’s effort to thwart legal immigration. The Biden administration should not only remove this impediment, but it should also implement premium processing of H-4 extensions and work authorization (EAD) requests. We refer you to a prior blog, “Work Authorization for H-4 Spouses: The Experience Thus Far” that discusses the eligible requirement for EADs. Since Congress authorized additional premium processing last year, which the USCIS has not implemented yet, we urge the agency to act now.

This processing limbo has caused much confusion among the nonimmigrant population. As litigation ensues over the delays around the country, we have outlined some of our most asked H-4 dependent related questions below.

Traveling Abroad While H-4/L-2 Is Pending and H-1B/L-1 principal has a valid I-94

While consular posts continue to operate at a limited capacity, it is not always ideal to travel outside of the United States in order to receive an H-4 visa stamp. Still, we provide some guidance below when travel opportunities arise.

The H-4 extension request can remain pending even if the spouse leaves the United States. The same is also true with respect to the request for an employment authorization document (EAD) through the filing of the I-765. However, if an H-4 spouse leaves the United States before doing his/her biometrics, and the USCIS issues a biometrics appointment, the spouse can seek postponement and complete the biometrics when he/she returns to the United States.

Travel during an extension request should be distinguished from travel during a request for change of status. If one departs the United States while the change of status to H-4 is pending, the underlying I-539 application will get denied.

Whether the H-4 is processed abroad or by the USCIS, it is always important to review the expiration of the I-94. The I-94 is attached to H-4 approval notices (I-797) when H-4s are approved by the USCIS. If the H-4 spouse either obtains their H-4 visa stamp abroad or travels outside of the United States, the new I-94 will appear on the Customs and Border Protection (CBP) I-94 portal, which should always be reviewed upon entering the United States.

Please remember that while visas allow a person to travel to a port of entry, the I-94 grants the actual status and permits the person to stay in the United States. The CBP has made mistakes on I-94s in the past, which is why reviewing each I-94 is even more critical. If the CBP made a mistake, correcting the I-94 may be as simple as contacting the CBP and requesting the correction. The CBP may also issue an I-94 date that matches the validity period of the underlying passport. Therefore, it is important to ensure that the passport is renewed prior to travel abroad in order to avoid a mismatch in the I-94 validity date and the H-4 visa, or the H-1B approval notice.

Lastly, if the H-4 spouse’s I-94 does not match the visa expiry date, it is important to plan to file an I-539 extension request in advance of the I-94 expiration. Alternatively, the spouse can travel abroad and be admitted.

 No Status while H-4 Is Pending vs. Accrual of Unlawful Status

Most importantly, H-4 spouses must not accrue unlawful status in the United States. H-4 spouses have been falling out of status because of the long processing delays, however, H-4 spouses do not begin to accrue unlawful status as long as the H-4 extension (form I-539) was filed before the H-4 status (the I-94) expiration date. During the pendency of the I-539 request, the applicant is authorized to remain in the United States even if they do not have the underlying H-4 status. Once the extension request is approved, the spouse’s H-4 status is restored.  If, for whatever reason, the H-4 extension is denied, the H-4 spouse will start accruing unlawful presence for the purpose of triggering the 3 or 10 year bars under INA 212(a)(9)(B)(i)(I) and (II). If the spouse has been unlawfully present for more than 180 days, they will face the three-year bar once they depart the United States. Therefore, it is incredibly important to not accrue unlawful status.

If the spouse wants to file a motion to reopen or reconsider upon a denial, the spouse must consider leaving within 180 days of the denial if the case has not been reopened. He/she would risk facing a 3 or 10 year bar if they leave after 180 days, assuming the motion is not granted.

Conclusion

Although it is understandable that the Biden administration has been left with a big backlog of H-4 and L-2 cases from the Trump administration, the Biden administration can alleviate the backlog by immediately lifting the biometrics requirement whenever an I-539 is filed. This would be a good first step as the H-4 extension will get processed along with the H-1B extension under premium processing. Then, premium processing should be introduced for EAD processing. The additional premium fees that applicants will gladly pay can be used to add more resources to expedite the processing of cases. Of course, all this is still a band-aid since the ultimate solution is to alleviate the backlogs in the employment-based preferences by adding more visa numbers as well as exempting the counting of certain immigrants such as dependents, which is part of Biden’s US Citizenship Act of 2021. Even if the prospects of the passage of the entire bill are unlikely, the provisions that will alleviate the backlogs in the family and employment visa system must be pushed along with helping Dreamers and TPS applicants in the American Dream and Promise Act of 2021.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice.)

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

Michelle S. Velasco

Beware The Gap: USCIS’s Policy Changes Cause Headaches and Confusion for F-1 Change of Status Applicants

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There’s never any good news coming from USCIS these days.  The agency’s treatment of applicants changing status to F-1 is another prime example of a confusing policy change that has no basis in law and regulation, and which severely hurts the U.S.’s ability to hold on to talented students.  To fully grasp the ridiculousness of modern day USCIS, we should take a trip back through relevant policy interpretations dating back to legacy INS.  We can start in April 2012 when the administration under President George W. Bush, frightened by the September 11, 2001 terrorist attacks, published an interim rule in the Federal Register.  You can see from the preamble to the interim rule exactly the kind of xenophobic policy the administration was trying to implement, which has only gotten worse today:

The terrorist attacks of September 11, 2001 highlight the need of the Service to maintain greater control over the ability of an alien to change nonimmigrant status once the alien has been admitted to the United States. This interim rule will allow the Service to fully review any request from a B nonimmigrant to change nonimmigrant status to that of full-time student before allowing the alien to enroll in a Service-approved school. The elimination of the ability of a B nonimmigrant to begin classes before receiving the Service’s approval of the change of nonimmigrant status is also consistent with the Act’s requirement in section 101(a)(15)(B) that a B nonimmigrant not be a person coming to the United States for the purpose of study.

The interim rule was effective upon publication, and was announced in a Memo from Johnny N. Williams, the Executive Associate Commissioner of the Office of Field Operations (Williams, Ex. Assoc. Comm. Field Operations, Requiring Change of Status from B to F-1 or M-1 Nonimmigrant Prior to Pursuing a Course of Study, HQISD 70/6.2.2 (Apr. 12, 2002)).  The new rule required a B-1/B-2 visitor to first obtain a change of status to F or M status before starting school.  If a visitor had already started school, the change of status application would be denied.  The rule became effective April 12, 2002 and the policy was codified in 8 CFR §214.2(b)(7).  Going further, the change of status application needed to be timely filed before the B-1/B-2 status expires and within 30 days of the start of school.  The latter requirement seems to stem from USCIS’s interpretation of 8 CFR §214.2(f)(5)(i), part of which states:

An F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20.  The student is considered to be maintaining status if he or she is making normal progress toward completing a course of study.

Then, a case brought before the Maryland District Court in 2011 challenged USCIS’s interpretation of this regulation.  In Youseffi v. Renaud, 794 F.Supp.2d 585 (D. Md. Mar. 11, 2011), the Plaintiff Narges Youssefi entered the U.S. in B-2 status and was granted a B-2 extension through December 27, 2007.  After receiving a request from her employer back in Iran that she stay in the U.S. and take classes to improve her English language skills, Ms. Youssefi decided to apply to take English classes, acquired an I-20, and listed November 3, 2008 as the start date for her classes on the Form I-20.  She timely filed a change of status application from B-2 to F-1 on June 25, 2008.  USCIS denied her application, reasoning that she had failed to maintain her current nonimmigrant status up to 30 days before the start of classes and was therefore ineligible for a change of status.  The Plaintiff appealed the case all the way up to district court.  The court in Youseffi grappled with USCIS’s interpretation of 8 USC §1258, 8 CFR §248.1(b), and 8 CFR §214.2(f)(5)(i) that a B-2 to F-1 change of status applicant must maintain active B-2 status up to the 30 days before the school program start date, and not just until the change of status application is filed.  First and foremost, the court found that the statutory language at INA §248 is inherently ambiguous, as it “implies that the USCIS may not grant a change of status to someone who has failed to ‘maintain’ his or her nonimmigrant status, but it does not define what it means to ‘maintain’ status.  It is unclear from the statute whether a nonimmigrant must continue to maintain her status only until she petitions for a change in classification, or whether she must continue to maintain it until USCIS grants her new nonimmigrant status.”  Youseffi v. Renaud, 794 F.Supp.2d 585, at 593.  But then the court looked at 8 CFR §248.1(b) where it found language that clarified the ambiguity in favor of the applicant:

Section 248.1(b) states that “a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service ….” 8 C.F.R. § 248.1(b). Under the plain language of the regulation, an applicant may be eligible for a change of status even if she failed to file before her previously authorized status expired. The ultimate decision of whether to excuse the applicant’s lapse lies within “the discretion” of the USCIS.

Id.  (Emphasis added).  The court concluded that 8 CFR §248.1 allows USCIS to use its discretion to excuse applicants who apply for a change of status and whose prior status remained valid at the time of filing but later expired.  Id.  The court went on to review this same regulation against 8 CFR §214.2(f)(5)(i), and found that the latter regulation is silent on situations like in Youseffi where the applicant’s prior status expired more than 30 days prior to the program start date.  It then remanded the case to USCIS which the court found could excuse a change of status applicant who filed while the prior status is valid but which later expired.

Since Youseffi, however, no higher federal court has addressed USCIS’s interpretation of these regulations.  And in the last few years, USCIS’s views have moved further away from a reasonable plain meaning understanding of the statute and regulations.

Case in point, a few years ago, immigration attorneys began reporting USCIS denials of applications to change status from B-2 to F-1 where the applicant had timely filed while his prior status was valid, the program start date indicated on the Form I-20 was within 30 days of the expiration of the underlying status, but then because of lengthy processing times at USCIS service centers, the school’s Designated School Official (DSO) had to defer the program date in SEVIS.  The effective result was that although it was still within 30 days of the initial start date listed on the Form I-20, the applicant’s prior status had expired more than 30 days before the new program start date.  There were so many incidents of this that the American Immigration Lawyers Association (AILA) was prompted to send a letter to Leon Rodriguez, then-Director of USCIS and the agency’s Chief Counsel, Ur Mendoza Jaddou.  The letter, dated December 15, 2016 (and available here for AILA members), explained how USCIS was erroneously denying these applications by misinterpreting 8 CFR §248.1(b), 8 CFR §214.2(f)(5)(i), and Form I-539 instructions to require B-2 to F-1 change of status applicants to maintain their B-2 statuses up to 30 days before a new program start date even though the original start date was only deferred because of USCIS’s own extremely lengthy processing times.  AILA’s letter again reasoned that USCIS’s interpretation of these regulations went far beyond what they state, and that in fact nowhere in the regulations does it state that change of status applicants have to maintain their prior status so that they remain in that prior status until 30 days before the program start date.  AILA pointed to the fact that even the court in Youseffi cited Unification Church v. Attorney Gen. of the U.S., 581 F.2d 870, 877 (D.C. Cir. 1978) (stating, in dicta, that it “appears to be the position taken” in 8 CFR §248.1 that “an applicant nonimmigrant must continue to maintain his ‘status’ only until he petitions for a change in classification,” not “until his petition is granted”); and Salehpour v. INS, 761 F.2d 1442, 1447 (9th Cir. 1985) (“The plain regulatory language [of section 248.1] allows an applicant to file for change of classification up to the last day of his prior authorized stay.”).  Moreover, USCIS practice had been to routinely approve these types of change of status applications, and the I-539 instructions even stated that a change of status applicant “must maintain [his] current, or other, nonimmigrant status up to 30 days before the report date or start date of the course of study listed on Form I-20 or [the] requested change of status may not be granted.”  (Emphasis added).  The I-539 instructions clearly state that USICS is to rely on the date listed on the I-20 when adjudicating the application, and not a deferred start date that’s listed by the DSO on SEVIS.  AILA then argued that “bridge petitions” that the applicant would file to extend the B-2 even while the change of status to F-1 is pending are not only cost prohibitive, they cause confusion to applicants, force USCIS to adjudicate unnecessary applications, which in turn lengthen already long processing times, and additionally creates issues around the “intent” of the applicant who already filed to change a status from temporary visitor to temporary student and then has to file an extension of a temporary visitor status.  Moreover, at the time of the letter, AILA’s members found that USCIS’s bridge petition requirement for B-2 to F-1 change of status applicants was inconsistently applied, where some B-2 extension applications were denied because it went against B-2 intent, or returned because they were not required.

Seemingly in answer to all the complaints from stakeholders about the inconsistent application of the bridge application requirement, USCIS decided in April 2017 to formalize the new policy.  USCIS updated its website to formally require B-1/B-2 to F-1 or M-1 change of status applicants whose status will expire more than 30 days before the initial F-1 or M-1 program start date, or whose program start dates had to be deferred because of USCIS processing times, to file a second Form I539 requesting an extension of the B-1/B-2 status and pay a separate fee for that application.  By the way, if the change of status application takes so long that the first extension time runs out, the applicant must file another extension of status application with another fee, and keep going until the original change of status has been approved.

Then, to cause even more confusion, and in a completely unhinged and callous move, USCIS decided to apply this “new” policy to pending B-1/B-2 change of status applications that were filed before USCIS posted its guidance.  How do we know?  Because USCIS issued Requests for Evidence (RFEs) to these applicants!  In these RFEs, USCIS states that the applicant’s underlying B-1/B-2 statuses had expired and that the F-1/M-1 start date had been deferred to a date more than 30 days after the B-1/B-2 status expired.  And by virtue of the new policy, which again was posted after the change of status application had been filed, USCIS requests evidence through the RFE that either the applicant submitted the additional Form I-539 application to extend her B-1/B-2 status, or if the applicant had not (and let’s again recall that the policy was adopted after the application was filed, and there is no indication on the USCIS website that it would apply retroactively to pending applications), that the applicant file the new I-539 now and ask USCIS to excuse the late filing pursuant to 8 CFR §214.1(c)(4).

Let’s recap what we have so far.  USCIS decided in April 2017 that it will require B-1/B-2 extension of status applications filed even if an application to change status is already pending, and is applying this policy to already filed change of status applications, and all without issuing a formal policy memorandum or undergoing a normal notice and comment period.  USCIS merely posted new “guidance” on its website, provides no statutory or regulatory basis for this change, and does not explain what happens to the B-1/B-2 extension of status applications once they are filed.

The result of USCI’s failure (or perhaps refusal) to undergo a formal notice and comment period for a sweeping policy change is that applicants and other stakeholders are simply not well informed about USCIS’s requirements, usually to detrimental and often disastrous results.  What had started off as USCIS’s formalization of its policy toward B-1/B-2 to F-1/M-2 change of status applicants has recently expanded to affect all other nonimmigrants who want to change status in order to remain in the U.S. to study.  USCIS’s original website posting of the new “guidance” referred exclusively to B-1/B-2 status holders changing status to F-1 or M-1 (the original website post has been preserved by AILA, and can be viewed here by members).  A careful review of the most recent USCIS website discussing this policy, which was most recently updated in February 2018, shows that the policy has been extended to every nonimmigrant whose status will expire more than 30 days before the F-1 and M-1 program start date.  There is no specific mention of B-1/B-2 status holders.  The full relevant language from the website is pasted here:

What if I Have a Gap in Status?

If your current nonimmigrant status will expire more than 30 days before your F-1 or M-1 program start date and you wish to remain in the United States until your start date, you must find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”). For most people, you will need to file a separate Form I-539 to request to extend your current status or change to another nonimmigrant status, in addition to your other Form I-539 application to change to student status. If you do not file this separate request prior to the expiration of your status, USCIS will deny your Form I-539 request to change to F-1 or M-1 status. Please continue to check the USCIS processing times while your Form I-539 change of status request is pending to determine if you need to file a request to extend or change your nonimmigrant status.

  • Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before yournew program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.

Because extending or changing nonimmigrant status to bridge the gap and changing to F-1 or M-1 status are two distinct benefits, you must pay a separate filing fee for each request. See the User Fee Statute, 31 U.S.C. § 9701.

How does this expanded policy look in practice?  Let’s say that an H-4 child of an H-1B worker is going to age out because she is turning 21.  Meanwhile her parents intend to maintain their H-1B and H-4 statuses, extending them in 3-year increments, so that they can remain long-term in the U.S. until the H-1B parent’s I-140 priority date is current and they can adjust status to lawful permanent residents.  It bears noting that the reason why our H-4 applicant’s parents are still in H-1B and H-4 statuses and need to extend them in 3-year increments under §104(c) of the American Competitiveness in the 21st Century Act is because they are caught in the never-ending green card backlogs under the employment-based second (EB-2) or employment-based third (EB-3) preferences and by virtue of being born in India or China.  Otherwise, the parents, along with our H-4 applicant who was their minor child, would have long ago obtained their green cards and the H-4 student would not have had to go through this ordeal.  Our H-4 student has already been enrolled in college and has been otherwise maintaining her valid H-4 status.  Following prior USCIS guidance and the guidance of her DSO, she decides to timely file a change of status application to F-1 so that she does not have to interrupt her studies by applying for an F-1 abroad and then returning to the U.S.  As most stakeholders know, I-539 applications for a change of status notoriously take a long time for USCIS to process.  So she waits, even after her H-4 has expired, thinking that she is in a “period of stay authorized by the Attorney General” as she had timely filed her change of status application.  And then bam!  She is hit with a denial.  Why?  Because she did not maintain her status or seek a change of status to another nonimmigrant category so that she could be “in status” within 30 days of the program start date indicated on the I-20.  Yes, folks.  USCIS now requires even H-4 nonimmigrants applying to change status to F-1 to apply to change status to B-1/B-2 in order to stay “in status” until 30 days within the program start date.  And USCIS does not even bother with issuing RFEs requesting proof that the applicant has maintained status until within 30 days of the program start date.  The Service will simply issue a denial and it’s up to the applicant now to determine whether she can stay in the U.S. as her unlawful presence started tolling when the denial was issued, and whether it is even possible to appeal this nonsensical decision.

What is particularly irksome about USCIS’s policy changes is that the usual notice and comment period would have, even if brief, provided some notice to stakeholders.  But here, USCIS simply changed a bit of language on its website and everyone is expected to know the new requirements, abide by them, and live with harsh results for failing to follow them.  Empirically, we are aware that school DSOs were not given any notice or guidance by USCIS on this new policy and its expansion to other nonimmigrant categories.  Thus, our lowly applicant who relied on the advice of the DSO would not have known to request a change of status to B-2 to bridge the gap until her change of status to F-1 is approved.  She is instead punished with a harsh denial, the inability to continue her studies, and potentially having to leave the U.S. in order to apply for an F-1 abroad which comes with its own set of issues, not the least of which could be questions over the applicant’s nonimmigrant intent and problems with demonstrating ties to her home country if she has been living in the U.S in H-4 status since she was a young child.

There is already a brain drain occurring in the U.S. thanks to the Trump administration’s xenophobic policies combined with the EB-2 and EB-3 backlogs.  Fewer students want to come to study in the U.S.  It’s harder for companies to hire highly educated and skilled foreign workers.  The backlogs in the EB-2 and EB-3 preferences are also causing skilled immigrants from India to leave the U.S. for countries like Canada in total desperation.  Foreign born entrepreneurs are facing difficult challenges starting their businesses here in the U.S.  One prime reason that people have upended their lives to come to the U.S. is to pursue the “American dream” for their children – to give them a chance to obtain excellent education and take advantage of the economic, social, and cultural opportunities in the U.S.  This dream turns into a nightmare when the child on the H-4 visa ages out and is unable to seamlessly change status to F-1.  No immigrant parent wants his child to be in a worse off situation than him because of our Byzantine immigration system.  And now we will see even fewer nonimmigrants try to attend school because of USCIS’s new, cumbersome, and costly policy discussed in this blog.  Worse, if USCIS continues to issue new policy changes without a notice and comment period, we will likely see more confusion, more heartbreak, and more completely nonsensical and costly requirements all without the barest minimum in explanation from our government.  Beware the gap, indeed.

Cyrus Mehta

WORKING : H-4 SPOUSES GET TO TAKE A STEP FORWARD, BUT IS IT A GIANT ONE?

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By Gary Endelman and Cyrus Mehta

Sometimes it takes a while for a sound idea to gain acceptance. Granting employment authorization to H-4 spouses is a good example. In late March 2010, the authors urged In The Tyranny of Priority Dates that this be done, with or without an employment authorization document (EAD). A few months later, then USCIS General Counsel Roxanna Bacon, Service Center Operations Head Donald Neufeld and Field Operations Chief Debra Rogers recommended precisely this same step to USCIS Director Alejandro Mayorkas, but only for those “H-4 dependent spouses of H-1B principals where the principals are also applicants for lawful permanent residence under AC 21.” Memorandum, Administrative Alternatives to Comprehensive Immigration Reform (posted as AILA InfoNet Doc. 10073063 on July 30, 2010). The memo was leaked by those who wanted to defeat any administrative initiatives and they did so. There matters stood until a few days ago on January 31, 2012 when the Department of Homeland Security brought this idea back to life. The announcement includes other goodies too, but this is what it specifically says about the possibility for an H-4 spouse to work:

  • Provide work authorization for spouses of certain H-1B holders.

This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

Those who dig a bit deeper on the government’s regulatory agenda site find a key qualifier that severely limits the benefit granted. Some H-4 spouses it seems are more deserving of the right to work than others: employment authorization is to be extended only to those “H-4 spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or “stay” in the U.S. under section 104(c) or 106(a) of Public Law 106-313 also known as the American Competitiveness in the 21st Century Act.” This means that no H-4 spouse whose H-1B principal has not spent more than 6 years in the USA will be eligible to apply for an EAD. At a minimum, a PERM labor certification or I-140 would have to have been filed, and even approved to qualify for the 3 year H extension under Section 104(c) of AC 21, if less than 365 days had elapsed since submission. After all this, while it seems as if we should celebrate, how loud should the cheering be?

There is no need for the USCIS to adopt such an exceedingly narrow interpretation. After all, if we look at the essentially unlimited authority granted by INA 274A(h)(3)(B), it seems clear that the USCIS can grant employment authorization to anyone at any time for any purpose. As our insightful colleague David Isaacson has cogently pointed out, under these circumstances, an EAD can be issued to someone who is not attached to either a PERM or an approved I-140. Indeed, an H-4 spouse whose H-1B principal is the beneficiary of an approved family-based third preference I-130 benefits not at all since such approval would not sustain a 7th H year under AC 21. Save for National Interest Waivers and Persons of Extraordinary Ability, which do not need a job offer, the right of an H-4 spouse to work is conditioned upon the willingness of the H-1B principal’s employer to sponsor his/her mate for LPR status, something over which the H-4 spouse has no control.

There is nothing in the INA that prevents an H-4 spouse from working. This prohibition is purely an act of regulation. That being the case, what prevents the USCIS from taking a more generous view? We would do well to remember that the unavailability of an EAD outside the adjustment of status context forces people into the H-1B category who might not otherwise need or even want to be there. Allowing all H-4 spouses to work would ease the pressure on the H-1B category and, by so doing, serve to diminish opposition to all employment-based immigration. While it is true that the H-1B is subject to an annual limitation each year, most other nonimmigrant work visas do not have an annual cap. Beyond that, America suffers when the nation forgets that many talented H-1B beneficiaries choose not to stay here because their H-4 spouses are unable to work. See Matt Richtel , Tech Recruiting Clashes with Immigration Rules, N.Y.Times, Apr.12, 2009.

Truth be told, there is no need for any H-4 spouse to apply for an EAD. Why not simply include H-4 spouses as part of 8 CFR Section 274a.12(a) so that they could work incident to status? This is a simple yet elegant way to ameliorate the extreme economic hardship that our system needlessly inflicts upon H-4 spouses. In fact , why limit this to H- 4 spouses? There is nothing to prevent the Executive from granting work authorization to teenage children on H-4 visa status.

There is no reason why an H-4 spouse should have to wait for years before being allowed to work. Since both the H and L categories are clothed with dual intent – both visa categories allow the holder to apply for a green card from the very outset – the H-4 spouse should be treated exactly like the L-2 spouse when it comes to applying for an EAD. Indeed, the H-4 spouse may be more deserving of a work permit if the wait for the green card under the employment based second and third preferences can take several years, or even decades, especially if the spouses are born in India or China. In fact, despite a cap on H1B visas compared to unlimited L migration, AC21 makes it possible, and certainly more frequent, for the H4 spouse to remain in the USA far longer than the L-2 counterpart, thus making the need for employment authorization more not less compelling. If the USCIS wants to limit the scope of this benefit, allow it to be conditioned upon the filing of a non-frivolous labor certification, or I-140 if no labor certification is required, regardless of how long the H-1B has been in the United States. This would advance the national interest by enhancing the incentive for H-1Bs to come to the United States and remain here, despite chronic visa backlogs.

Ours is a policy of audacious incrementalism designed to maximize the remedial possibilities within the INA as it now exists while waiting for something better, namely congressional enactment of comprehensive immigration reform. Not only is it fitting and proper for the USCIS to formulate immigration policy on highly minute technical issues of surpassing importance, it is no exaggeration to contend that the Constitution expects this to happen. Indeed, without this, who would do it? Far from crossing the line and infringing upon the authority of Congress, what we ask the USCIS to do augments Congressional prerogatives by providing a practical way forward. For those who say that we ask too much too soon, we respond with one simple question, the same one that Hillel the Sage asks in Ethics of the Fathers: “If not now, when?”

(The views expressed by guest author, Gary Endelman, are his and not of his firm, FosterQuan LLP)