Tag Archive for: L-2

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.