Articles Posted in H-4 Dependent Spouses

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We are happy to deliver some amazing news for H-4, E, and L dependent spouses! On November 12, 2021, following a settlement agreement known as Shergill v. Mayorkas, the United States Citizenship, and Immigration Services (USCIS) issued a new Policy Memorandum (Policy Alert PA-2021-25) outlining that the agency will automatically allow for employment authorization for dependent E, L, and certain H-4 spouses of principal visa holders, without requiring spouses to file I-765 application for employment authorization to be eligible to work in the United States.

The new Policy Memorandum also rescinds the agency’s previous 2002 Memorandum which did not allow dependent spouses in E, L and certain H-4 visa holders to automatically qualify for work authorization in the United States.

Following this new settlement, E, L, and certain H-4 spouses will be able to work just by having their valid visas, and they will not need to file any separate applications nor need an employment authorization card (work permit) to lawfully work in the United States.

While some doubt initially arose regarding whether E dependent spouses would qualify for automatic employment authorization, USCIS has now explicitly confirmed that it will indeed consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status.

The new November 12, 2021, Policy Memorandum outlines the following:

  • Certain H-4, E, or L dependent spouses to qualify for an automatic extension of their existing employment authorization and accompanying employment authorization document (EAD) if they properly filed an application to renew their H-4, E or L-based EAD before the document expires and they have an unexpired Form I-94 evidencing their status as an H-4, E, or L nonimmigrant;
  • The automatic extension of the EAD will continue until the earlier of: end date on Form I-94 evidencing valid status the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the prior EAD document; Form I-94, evidencing unexpired nonimmigrant status (H-4, E or L), Form I797C receipt for a timely – filed EAD renewal application stating “Class requested as “(a)(17),” “(a)(18) or ((c)(26)”, and the facially expired EAD issued under the same category);

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In this blog post we share amazing news with our readers regarding the settlement of a recent class-action lawsuit filed against the U.S. Department of Homeland Security. The agreement reached under the settlement will immediately allow for automatic renewals of employment authorization for: L-2 spouses of L-1 nonimmigrants and qualifying H-4 dependent spouses who (a) properly file an application to renew their H-4 based employment authorization document before expiration (b) have an unexpired Form I-94 showing their status as an H-4 nonimmigrant and (c) who will continue to have H-4 status beyond the expiration date of their employment authorization document. Shergill v. Mayorkas, No. 21-1296 (W.D. Wash.)


What does this new settlement mean?


 Effective immediately, the Shergill settlement will make it a lot easier for L-2 and H-4 dependent spouses to continue working in the United States without having to apply for a renewal of their employment authorization and without interruptions to their employment. As many are already aware, the processing of I-765 employment authorization applications is currently subject to extreme delays due to the pandemic and burdens on USCIS offices. This new settlement will prevent L-2 and certain H-4 dependent spouses from being stuck in these backlogs. Not to mention L-2 and certain H-4 spouses will no longer have to pay the required $410 filing fee to renew their employment authorization. Following this new settlement, L-2 spouses and certain H-4 spouses will be able to work just by having their valid H-4 and L-2 visas, and they will not need to file any separate applications nor need an employment authorization card (work permit) to work in the United States.


Guidelines for Dependent Spouses under the Settlement Agreement


Under the terms of the Shergill settlement agreement, as it relates to L-2 dependent spouses, USCIS will now interpret 8 CFR § 274a.13(d) to recognize that employment authorization for such spouses is now linked (incident) to their visa status. USCIS will also allow up to 180-day automatic employment authorization extensions when the applicant has already had the H-4 or L-2 status extension granted either through USCIS or through travel.

Automatic Renewals of Employment Authorization for applications that already have valid H-4 status

  • Pursuant to the settlement agreement, USCIS is now interpreting the law so that H-4 nonimmigrants who have timely filed their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD, qualify for the automatic extension based on their (c)(26) EAD.
  • This automatic extension will terminate on the earlier of: the end date of the H-4 status, adjudication of the EAD renewal application, or 180 days from the previous card’s expiration date.

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In this blog post, we share with you some new biometrics updates recently announced by the United States Citizenship and Immigration Services (USCIS).


Biometrics Submissions Waived for Certain I-539 Applicants


Beginning May 17, 2021, USCIS will be temporarily suspending the biometrics submission requirement for applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, who are requesting an extension of stay in or change of status to H-4, L-2, and E nonimmigrant status.

Starting on Monday next week, for these applicants only, USCIS will rely on biographical information and related background checks, without requiring applicants to provide fingerprints and a photograph. This new discretionary policy will be in effect until May 17, 2023, until it is extended or revoked by the USCIS director.

Who will not be required to submit to biometrics submission?

Pursuant to this new announcement, the temporary biometrics suspension will apply to applicants filing Form I-539 requesting the following:

  • Extension of stay in or change of status to H-4 nonimmigrant status;
  • Extension of stay in or change of status to L-2 nonimmigrant status;
  • Extension of stay in or change of status to E-1 nonimmigrant status;
  • Extension of stay in or change of status to E-2 nonimmigrant status (including E-2C (E-2 CNMI Investor)); or
  • Extension of stay in or change of status to E-3 nonimmigrant status (including those selecting E-3D).

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Welcome back to Visalaywerblog! In this blog post we share with you an interesting new piece of legislation that will have a profound impact on the visa quota system for family-based and employment sponsored immigration.

The Fairness for High Skilled Immigrants Act (S. 386) was unanimously passed by the U.S. Senate on December 2, 2020 and sent back to the House of Representatives for approval.

At its core, the bill seeks to eliminate per-country numerical limitations for employment-based immigrants and increase per-country numerical limitations for family-sponsored immigrants.

Previously, the House of Representatives had passed its own version of the bill, but it has since been amended substantially by the Senate.

Amendments were added to Sections 8 and 9 of the bill. These changes are in addition to those amendments previously introduced by Senator Grassley on H-1B visas, Senator Perdue creating a set aside for Schedule A health care professionals and their family members, and Senator Durbin’s amendments which include a delayed effective date of the bill, transition periods for EB-2 and EB-3 immigrants, early adjustment filing provisions, and an age out protection for children.


What does the December 2020 version of this bill look like?

Among its major provisions are the following.

Green card reforms:

  • The bill would phase out employment-based per county limits on green cards: The main purpose of the legislation is to treat all employment-based immigrant visa applicants on a first-come, first-served basis without regard to birthplace. Under current law, immigrants from no single birthplace can receive more than 7% of the total number of immigrant visas or green cards issued in a year unless they would otherwise go unused. The effect of this provision is that while Indians are half the skilled employer-sponsored applicants, they receive just 10 percent of those green cards and—as a result—are nearly 90 percent of the backlogged applicants.
  • The bill would provide for an 11-year phase out period: The bill’s green card changes would take effect on October 1, 2022. For the EB-2 and EB-3 categories for non-executive level employees of U.S. businesses, the bill guarantees immigrants which are not from the top two origin countries (India and China) a certain percentage of the green cards for 9 years: year 1 (30%), year 2 (25%), year 3 (20%), year 4 (15%), years 5 and 6 (10%), and years 7 through 9 (5%). No more than 25 percent of these “reserved” green cards can go to immigrants from any single country. No more than 85 percent of the other “unreserved” green cards can go to a single country (India). In addition, a minimum of 5.75% of all EB-2 or EB-3 green cards will go to immigrants from these non-top 2 countries for 9 years prioritizing spouses and minor children of immigrants already in the United States and immigrants awaiting visas abroad.

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The Trump administration is making another bold move, this time the target is H-4 dependent spouses of H-1B nonimmigrant workers seeking permanent residence.

The Department of Homeland Security has published a notice of proposing rule-making (NRPM) to rescind an Obama era rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B workers seeking permanent residence.

We are awaiting publication of the proposed rule in the federal register. At this time, the regulation has preliminarily appeared on the government website reginfo.gov.