Written by Holly Hatton Kuzeyman, Esq., Senior Attorney.
United States Citizenship and Immigration Services (USCIS) has struggled with backlogs and delays since the onset of the COVID pandemic in March 2020.
Recently, USCIS has enacted multiple policies that, according to the organization, are aimed at “increasing efficiency and reducing burdens to the overall legal immigration system.”
Below is an in-depth analysis of the new USCIS policies and their impact on foreign nationals.
L-2 and E dependent spouses
USCIS has released significant updated guidance over the last few months benefitting the spouses of L-1 and E (E-1, E-2 and E-3) visa holders.
Since early 2022, these spouses no longer require an EAD to work and are considered employment eligible incident to status.
Starting January 31, 2022, Customs and Border Protection (CBP) began issuing new I-94s at U.S. Ports of Entry for L and E dependent spouses with the new admission codes “L-2S” and “E-1S/E-2S/E-3S.” USCIS also began issuing I-797 approval notices with these new designations in the “Notice Type” box as well as on the I-94 attached at the bottom, as applicable.
These I-94s with the new “S” designations serve as immediate proof of work authorization and are considered a List C document for I-9 purposes.
All other dependents (including children under the age of 21) are not eligible for automatic work authorization under the new policies.
On April 1, 2022, USCIS also began issuing notices to E and L spouses, who previously filed a Form I-539, which confirm and serve as proof of spousal work authorization when presented to an employer with an unexpired I-94.
A Form I-94 without the new spousal designation is not, alone, sufficient evidence of employment authorization, in which case a valid EAD (or in some cases a pending EAD Receipt Notice) is required for work authorization, or the USCIS notice confirming work authorization.
The updated policies are a ramification of a settlement reached in mid-November in Shergill, et al. v. Mayorkas. The settlement and resulting updated policies have already helped thousands of individuals whose case adjudications have been delayed because of backlogs at USCIS.
The new policies allow eligible spouses to bypass submitting EAD applications to a backlogged USCIS and to begin working immediately in the United States, skipping months or even years of delays.
Extended employment authorization for H-4 dependent spouses
In early May, USCIS announced a temporary final rule that increased the length of automatic extensions of employment authorization for certain EAD renewal applicants from 180 days to as many as 540 days. In practice, the new approach has unfortunately provided little to no assistance for H-4 visa holders.
The rule was implemented to prevent foreign nationals from losing work authorization solely as a result of excessive delays and backlogs at USCIS, with some service centers posting average processing times between 18.5 and 22 months.
The temporary extension rule only applies to EAD applicants who were eligible for the automatic extension of 180 days upon a timely filed EAD renewal application, including Adjustment of Status applicants and certain nonimmigrant spouses.
To benefit from the temporary rule, the applicant must have a currently pending EAD renewal application with USCIS, which was timely filed before their EAD expired, or the applicant must timely file their EAD renewal application between May 4, 2022, and October 27, 2023.
But the extension provision includes a special caveat for H-4 EAD holders and has provided little actual benefit for them. Many have still seen their work authorization expire because of a provision in the new rule.
For H-4s, the rule provides the extension for up to 540 days, or the expiration of the Form I-94, whichever comes first. Typically, the H-4 visa holder’s EAD expires at the same time as the Form I-94. Therefore, the new policy provides little to no extended validity of the EAD. There is also no relief in the form of premium processing available for these H-4 visa holders to expeditiously obtain an extended Form I-94 (more on premium processing in the section below).
The attorneys at Garfinkel Immigration Law Firm have implemented certain strategies individuals can use to avoid a lapse in work authorization for H-4 spouses.
For example, the primary H-1B beneficiary can apply for an extension of their status using premium processing, but no more than six months prior to their current expiration. Then, once that extension is approved, the H-4 spouse can travel abroad and process a new visa stamp at a U.S. consulate, as necessary. Re-entering the U.S. will trigger a new Form I-94 for the spouse upon return to the United States which matches the primary visa holder’s I-94. The spouse could then complete a Form I-765, Application for Employment Authorization and timely file such application, making them eligible for the automatic EAD extension.
This strategy entails some risks and may not be applicable in every situation. For instance, if a spouse requires a new visa stamp to re-enter the U.S., some U.S. consulates abroad are experiencing major backlogs and delays.
For example, current posted processing times at the U.S. Consulate in Chennai exceed 185 days and realistically are likely longer that the posted timeframes. A spouse could end up stuck abroad for a prolonged period of time if their consular appointment is cancelled — as they have become increasingly more difficult to reschedule — or if their application is delayed due to wait times or administrative processing.
Additionally, H-4 spouses need to be mindful of submitting an extension of stay request and, possibly, an EAD application in the United States as a safeguard, even if they plan to travel abroad, in case they experience difficulties scheduling consular appointments. Timing and process in each individual case should be assessed in order to develop the best strategy for each individual circumstance.
Individuals encountering potential lapses in work authorization because of backlogs at USCIS should consult with experienced immigration counsel to discuss the best options and strategies available to them.
Premium processing
USCIS is in the process of expanding premium processing to certain petitions that were previously ineligible. But that measure is being implemented gradually over a long period of time and has provided little relief to many of the foreign nationals currently disadvantaged by the organization’s backlogs and delays.
In late March 2022, USCIS implemented a “phased approach” to expand premium processing to at least three new categories, following legislation on the matter passed by Congress in October 2020.
The new categories included:
- Form I-539, Application to Extend/Change Nonimmigrant Status: $1,750 fee and a 30-day processing time window
- Form I-765, Application for Employment Authorization: $1,500 fee and a 30-day processing time window
- Form I-140, additional classifications (E-13/EB-1C and NIW): $2,500 fee and 45-day processing time window
As of August 1, the added premium processing was only available for EB-1C petitions filed with USCIS before July 1, 2021 for E1-3/EB-1C and August 1, 2021 for NIWs; At present, the posted processing times for E1-3/EB-1C for those ineligible to premium process is still between 13-16.5 months and for NIWs it ranges from 15-20.5 months.
USCIS is also planning to add premium processing with a 30-day timeframe for Form I-539 petitions and Form I-765 Applications, according to the American Immigration Lawyers Association. That expansion, however, will not be effective until FY2025. This provides no extra support to those who have already lost, or are facing the prospect of losing, work authorization over the upcoming years or those looking to change visa status to another category, where wait times regularly exceed one year.
Note the mere designation of a benefit request under the Final Rule set in May 2022 (including the fee and processing timeframes), does not in itself permit a request for premium processing to be filed. Instead, USCIS will determine which benefit requests are eligible for premium processing, the date the eligibility becomes available and the date it ends, and any conditions that may apply (such as the receipt date restrictions we currently see in the EB-1C and NIW categories).
Disproportionate impact on H-4 visa holders and employer confusion
In 2015, DHS used its discretionary authority to authorize employment for certain H-4s.[1] USCIS unfortunately has failed in execution by making illogical rules to prevent H-4s from easily maintaining such authorization with its maze of confusing rules and exceptions.[2]
Adding to a difficult scenario, USCIS makes it very difficult for employers to follow new extension guidance via the USCIS I-9 Handbook with pages of confusing information on the temporary extensions using unfamiliar codes and caveat exceptions. [3] USCIS’ attempt to clear its inexcusable backlog using premium processing unfortunately disadvantages H-4 visa applicants who are limited by both the automatic extension rule stated above and who are also currently unable to use premium processing for their H-4 extension requests or their EADs. Further it inhibits employers from hiring and retaining talent and goes against DHS’ original justification for the rule in “ameliorating certain disincentives that currently lead H–1B nonimmigrants to abandon efforts to remain in the United States while seeking LPR status.” [4]
Conclusion
Over the first two years of the Biden administration, USCIS has acknowledged the extreme delays at the agency and developed policies intended to alleviate some of the backlogs.
Some of those policies, including automatic work authorization for L-2 and E dependent spouses, have undoubtedly provided improvements for the beneficiaries. Others, such as extended employment authorization for H-4 dependent spouses as well as expanded premium processing currently have a much more limited effect.
The attorneys at Garfinkel Immigration Law Firm continue to monitor the situation closely and will alert clients as circumstances evolve. Individuals stuck in USCIS backlogs or dealing with excessive delays should consider consulting with experienced immigration counsel to discuss possible options that may be available to them.