Updates to Spousal EAD Processing

Good News on EAD Processing Delays

Many of our clients have faced enormous stress and uncertainty due to the extreme delays in USCIS processing times for work permits (EADs), which have gotten significantly worse in the last couple of years.  In many cases, it is taking well over a year (and sometimes close to two years) for USCIS to process these applications.  The American Immigration Lawyers Association (AILA) has been actively pursuing federal court litigation to address this issue, and we are pleased to report some major positive developments!

On November 10, 2021, a Settlement Agreement was reached in litigation involving EADs for spouses of H-1B workers in H-4 status and spouses of L-1 workers in L-2 status.  The terms of the settlement will initially benefit only these spouses who already have an H-4 or L-2 EAD card, who already have an H-4 or L-2 I-94 document valid for longer than their EAD card validity, and who have filed a timely request for an EAD renewal.  The Settlement Agreement also provided that within 120 days from November 10, 2021, USCIS and CBP will modify the Form I-94s of L-2 spouses to indicate that they are “L-2 Spouses,” which will provide them with work authorization automatically without being required to apply for an EAD card. Upon receipt of a Form I-94 indicating the individual is an L-2 spouse, L-2 spouses will be permitted to work even if they have never had an EAD card, and until the I-94 expiration date.

On November 12, 2021, in response to the Settlement Agreement, USCIS issued a Policy Alert, which provides that the work authorization provision changes applicable to L-2 spouses also apply to spouses of E visa holders in E dependent status.

To clarify, in contrast to the typical 180-day “automatic extensions” of EADs that most employers are familiar with, these “automatic extensions” will only apply to dependent spouses who have an I-94 showing H-4, L-2 or appropriate E visa status beyond the expiration date of their expiring EAD, and the automatic extension will last only until the earlier of: the expiration of their I-94; the approval or denial of the EAD application; or 180 days from the original EAD expiration date. There is no automatic extension of work authorization beyond the I-94 expiration for those with pending H-4, L-2 or E visa status extension applications that were filed with their EAD extensions.

H-4 EADs

An H-4 nonimmigrant with a timely filed EAD renewal application will qualify for an automatic extension of work authorization for up to 180 days. The auto-extension terminates on the earlier of:

1. The end date of the individual’s H-4 status as noted on their I-94 document;

2. The approval or denial of the I-765 EAD application; or

3. 180 days from the “Card Expires” date on their existing EAD.

H-4s needing to avail themselves of this new automatic extension of work authorization may complete a Form I-9 using the following in lieu of an unexpired EAD:

1. Facially expired EAD indicating category (c)(26);

2. Form I-797C, Notice of Action for Form I-765 with Class requested indicating (c)(26) and showing the renewal application was filed before the EAD expired; and

3. Unexpired I-94 showing H-4 nonimmigrant status.

Within 120 days from November 10, 2021, USCIS will amend receipt notices that are issued to applicants to detail the EAD auto-extension eligibility for H-4s.

L-2 Dependent Spouse and E Dependent Spouse EADs

Dependent spouses in L-2 status and dependent spouses of E visa holders in E status are now employment authorized incident to status.  This means that they will not need a separate EAD.  However, their work authorization under this new interpretation will not commence until CBP and USCIS are able to change the Form I-94 issued to L-2 spouses and spouses of E visa holders in E visa status, to indicate the bearer is an L-2, or E-1, E-2 or E-3 spouse, as appropriate, so that the endorsed I-94 can be used as a List C document for Form I-9. This is supposed to occur within 120 days from November 10, 2021.

USCIS has agreed that L-2s spouses and dependent spouses of E visa holders in E visa status, with timely filed EAD renewal applications, also qualify for an automatic extension of work authorization for up to 180 days. Therefore, until L-2 spouses and spouses of E visa holders in E visa status are able to obtain the new I-94 form that can be used for Form I-9, they will need to continue to maintain their EADs and timely file any required EAD renewal. The automatic extension of work authorization for L-2 spouses and spouses of E visa holders in E visa status, with a timely filed EAD renewal application terminates upon the earlier of:

1. The end date of the individual’s L-2 or E dependent spouse status as noted on their Form I-94;

2. The approval or denial of the I-765 EAD application; or

3. 180 days from the “Card Expires” date on the EAD.

As with H-4 nonimmigrants, L-2 spouses and spouses of E visa holders who need to avail themselves of this new automatic extension of work authorization may complete an I-9 using the following in lieu of an unexpired EAD:

1. Expired EAD indicating category (a)(18) or (a)(17), as appropriate;

2. Receipt Notice for Form I-765 with Class requested indicating (a)(18) or (a)(17), as appropriate, and showing the renewal application was filed before the EAD expired; and

3. Unexpired I-94 showing L-2 or E dependent spouse, as appropriate, nonimmigrant status.

EADs for individuals applying for Adjustment of Status

The American Immigration Lawyers Association (AILA) has recently filed another class action lawsuit to challenge EAD processing delays for applicants for adjustment of status.  We are hopeful that the filing of the lawsuit will result in swift action on the part of USCIS to improve its processing times and/or amend its policies.

All of our CML lawyers are active members of AILA, and several of us have served as President of the Washington State Chapter.  Please reach out to your CML team if you have any questions about these exciting developments.

November 2021 Visa Bulletin – Significant Retrogressions for EB-3 India and China 

The Department of State’s Visa Bulletin for November 2021 includes significant retrogressions for employment-based green card filings in the third (EB-3) preference category for people born in India and China.  The cutoff dates are moving back by nearly two years for India, and more than nine months for China.  The following cutoff dates will apply for the month of November:

For People Born in China:

-          People with priority dates before April 1, 2018 can file applications for adjustment of status

-          USCIS can approve applications for people with priority dates before March 22, 2018

For People Born in India:

-          People with priority dates before January 22, 2012 can file applications for adjustment of status

-          USCIS can approve applications for people with priority dates before January 15, 2012

The first preference (EB-1) category remains current for all countries, with the second preference (EB-2) advancing by several months for both India and China, and remaining current for all other countries. 

Visa Bulletin Basics:

As background, the Department of State has responsibility for ensuring that the number of immigrant visa (“green card”) applications approved each year does not exceed the annual limits set by US immigration law: 226,000 for Family-Based applications and 140,000 for Employment-Based applications.  These limits are further subdivided based on the applicant’s country of birth, as well as the family or employment-based “preference category” that applies to the case.  Because the demand for green cards is often higher than the annual limits, the Immigration Service assigns a “Priority Date” for each applicant when the green card sponsorship process is initiated.  The Priority Date establishes the applicant’s place in line for a green card. 

The Department of State publishes a Visa Bulletin each month to establish “cutoff dates” based on immigrant visa demand and per-country limits for each category.  The Visa Bulletin’s cutoff dates govern when green card applications can be submitted and approved for each preference category and country of birth.  The Visa Bulletin includes two sets of cutoff dates – one for “Final Action” and one for “Dates for Filing”.  After the Visa Bulletin is issued each month, USCIS announces whether it will accept adjustment of status applications based on the “Final Action” cutoff dates or the “Dates for Filing” cutoff dates.  For November 2021, USCIS has confirmed that it will use the “Dates for Filing” cutoff dates for purposes of accepting new adjustment of status applications.  This means that people with Priority Dates earlier than the “Date for Filing” listed on the charts can submit adjustment of status applications, and USCIS can approve adjustment of status applications for people with Priority Dates before the “Final Action Date” listed on the chart.

November Visa Bulletin: Retrogression

The Department of State’s Visa Bulletin for November 2021 includes significant retrogressions for employment-based green card filings in the third (EB-3) preference category for people born in India and China.  The cutoff dates are moving back by nearly two years for India, and more than nine months for China.  The following cutoff dates will apply for the month of November:

For People Born in China:

• People with priority dates before April 1, 2018 can file applications for adjustment of status

• USCIS can approve applications for people with priority dates before March 22, 2018

For People Born in India:

• People with priority dates before January 22, 2012 can file applications for adjustment of status

• USCIS can approve applications for people with priority dates before January 15, 2012

The first preference (EB-1) category remains current for all countries, with the second preference (EB-2) advancing by several months for both India and China, and remaining current for all other countries. 

Visa Bulletin Basics:

As background, the Department of State has responsibility for ensuring that the number of immigrant visa (“green card”) applications approved each year does not exceed the annual limits set by US immigration law: 226,000 for Family-Based applications and 140,000 for Employment-Based applications.  These limits are further subdivided based on the applicant’s country of birth, as well as the family or employment-based “preference category” that applies to the case.  Because the demand for green cards is often higher than the annual limits, the Immigration Service assigns a “Priority Date” for each applicant when the green card sponsorship process is initiated.  The Priority Date establishes the applicant’s place in line for a green card. 

The Department of State publishes a Visa Bulletin each month to establish “cutoff dates” based on immigrant visa demand and per-country limits for each category.  The Visa Bulletin’s cutoff dates govern when green card applications can be submitted and approved for each preference category and country of birth.  The Visa Bulletin includes two sets of cutoff dates – one for “Final Action” and one for “Dates for Filing”.  After the Visa Bulletin is issued each month, USCIS announces whether it will accept adjustment of status applications based on the “Final Action” cutoff dates or the “Dates for Filing” cutoff dates.  For November 2021, USCIS has confirmed that it will use the “Dates for Filing” cutoff dates for purposes of accepting new adjustment of status applications.  This means that people with Priority Dates earlier than the “Date for Filing” listed on the charts can submit adjustment of status applications, and USCIS can approve adjustment of status applications for people with Priority Dates before the “Final Action Date” listed on the chart.

CML Launches New Website

Cowan Miller & Lederman is pleased to announce the launch of our brand-new website! The new site launch is available at www.cmlseattle.com. Our goal with this new website is to provide our visitors with an easier way to learn about CML's services and solutions and also to allow the visitor to browse information based on their own choice. The new website is interactive and gives better access to Our People, Services, Why CML?, Processing Times, News, and Resources web pages. Our current and prospective clients will find useful information about our services and important news on the homepage of our website.

We hope you find the new website with a fresh look, easy to access information and we also wish to establish this portal as a source of information for those who visit our site.

New Pandemic-Related Travel Rules including COVID Vaccination Requirements for Some Air and Land travel to the U.S.

As of November 8, 2021 certain pandemic-related requirements for travel to the U.S. by air and land will be changing.  The U.S. will start requiring proof of full vaccination against COVID-19 for most adult air travelers who are not citizens or permanent residents entering the U.S. and will revoke geographic-based travel bans.  COVID-19 testing requirements prior to entry for all air passengers, including U.S. citizens, have been amended to apply differently to vaccinated and unvaccinated individuals.  The U.S. land ports of entry on the northern and southern borders will open to tourism (and other non-essential travel) by those who are not citizens or permanent residents for the first time since March 2020, but only for fully-vaccinated individuals.  Those traveling by land with work visas (and for other essential purposes) will continue to be able to enter the U.S. as they currently do and there will be no requirement to prove that they are fully vaccinated until sometime in January 2022.

Air travel

An executive order issued on October 25, 2021 outlined new requirements for international air travel into the U.S. effective November 8, 2021.   The order revokes previous geographic-based travel bans affecting entry from China, India, the Schengen Area, UK, Ireland, Brazil, South Africa, and Iran.  Under the new guidelines, passengers who are not U.S. citizens, permanent residents, or holding an immigrant (permanent residence) visa must present acceptable proof to airlines prior to boarding a flight that they have been fully vaccinated against COVID-19 according to the standards of the CDC.  There are limited exceptions to this requirement outlined below. 

Testing required for U.S. citizens and non-citizens alike prior to traveling by air to the U.S.

All passengers ages 2 and older traveling by air must provide negative COVID-19 test results before boarding a flight to the U.S.  For those fully vaccinated, proof of vaccination and a negative COVID-19 test result taken no more than three days before travel are required.  For those U.S. citizens and others who are not fully vaccinated and who otherwise qualify for entry, a negative COVID-19 test result taken no more than one day before travel is required.  The tests must be viral tests – NAAT (including PCR) or Antigen.  For more information on the types of test that are acceptable, see the CDC website.  Children under two and some individuals who have documented recovery from COVID-19 in the past 90 days are not required to provide negative COVID-19 test results.

CDC standards for proof of vaccination

Travelers must provide to the airline COVID-19 vaccination records which contain their name and date of birth as well as the vaccine product and date(s) of administration, and which were issued by an official source in the country where the vaccine was given, according to a White House Fact Sheet.  This documentation should fall into one of three acceptable categories outlined in the CDC Technical Instructions, including a digital vaccination certificate accessible via QR code (such as the UK NHS COVID pass), a paper vaccination certificate (such as the CDC vaccination card), or a digital record downloaded from an official source.  If the documentation is in a language other than English, travelers should check with the airline to determine whether a translation is needed.  The CDC has confirmed that for purposes of travel to the U.S., vaccines approved or authorized by the U.S. Food and Drug Administration or the World Health Organization emergency use listed vaccines will be accepted.  The list of vaccines can be found here.  Individuals will be considered fully vaccinated two weeks after receipt of the last dose of a multiple-dose vaccine, the first dose of an approved single-dose vaccine, or after any combination of two dose of approved vaccines (mix and match).

Exceptions to the Vaccine Requirement

The executive order requiring full vaccination does not apply to U.S. citizens, permanent residents, or those traveling on immigrant (permanent resident) visas.  However, individuals in these categories should still carry proof of vaccination when traveling for use in conjunction with the three-day pre-travel testing requirement described above.

Exceptions to the vaccine requirement outlined in the executive order and CDC guidance include:  Children under the age of 18; Those who have participated in qualifying clinical trials (See table 3) for COVID-19 vaccinations; Individuals for whom approved COVID-19 vaccination is medically contraindicated; Those granted humanitarian or emergency exceptions by the director of the CDC; Citizens of a country with limited vaccine availability (See table 4) traveling on a visa other than B-1/B-2; Members of the U.S. Armed Forces and their spouses or children; Those granted National Interest Exceptions (The application process has not been outlined, however, it appears that previously issued NIEs for prior travel bans will not be valid for purposes of the new vaccination requirements); Diplomats or persons on official government travel;  Travel to the United Nations pursuant to legal agreements; Certain Sea Crew members; and Certain Airline Crew members.

While individuals in these categories of exceptions will not have to show proof of vaccination upon entry, some adults will be subject to a requirement that they be vaccinated within 60 days of arriving in the U.S. and some may be subject to post arrival testing and self-quarantine.

It is notable that there are no exceptions to the vaccine requirement for religious or moral conviction reasons.  There are also no specific exceptions for individuals (other than diplomats) who have received vaccines approved by their home country, but which have not been approved by the FDA or WHO.

Travel by Land or Ferry to the U.S.

Starting on November 8, 2021, visitors who are not U.S. citizens or permanent residents will be allowed to enter the U.S. through northern and southern land ports of entry and ferry terminals for the first time since March 2020, provided that they can produce proof that they are fully vaccinated.   These requirements will be applied to those traveling for non-essential reasons (tourism, family visits, etc.) who are over the age of 18 and who are not U.S. citizens or permanent residents.  Travelers should be prepared to attest to their vaccination status and to provide proof of full vaccination.  The types of acceptable vaccines and definition of full vaccination will follow the same CDC guidelines described above for air travel.

Those seeking entry for essential travel (including those with temporary U.S. work visas) will be exempt from the requirement to provide proof of vaccination.  However, starting in January 2022, both essential and non-essential travelers will be required to be fully vaccinated.  U.S. citizens and permanent residents may continue to enter the U.S. by land or ferry without regard to vaccination status. 

The Department of Homeland Security has issued this guidance on these new requirements for entry by land, however, some details have yet to be clarified. 

Tips for those considering travel

Before planning travel, make sure that all necessary travel documents are still valid.  Many people have not traveled internationally in the last 20 months and may have not noticed that passports, green cards, visa stamps, and other documents may have expired or will be expiring soon.  Government agencies in the U.S. and in other countries are facing pandemic related delays in renewing documents such as passports.  The Department of Homeland Security is expecting an increase in land border wait times at its busiest crossing location, so plan accordingly for travel delays.

If you leave the U.S. and would need a new non-immigrant (temporary) visa stamp to re-enter the US, you should be aware that you may face delays in applying for new U.S. visa stamps.  Although the geographic-based travel bans will be revoked, the Department of State has confirmed that local U.S. embassies and Consulates may be limited in the ability to schedule visa interviews.  Commentators are predicting that U.S. Consulates may not be caught up on their backlog and fully functioning at pre-pandemic levels until 2023.

For more information about the new vaccination and testing requirements for air travel, The Department of State has issued this helpful Frequently Asked Questions on COVID-19 Vaccinations and Testing for International Travel (state.gov).  The CDC website has many resources about the guidelines for vaccination requirements including International Travel | CDC, Requirement for Proof of Negative COVID-19 Test or Documentation of Recovery from COVID-19 | CDC, Technical Instructions for Implementing Presidential Proclamation Advancing Safe Resumption of Global Travel During the COVID-19 Pandemic and CDC’s Order | Quarantine | CDC.  For more information about changes in the requirements for land travel, the DHS has issued a Fact Sheet: Guidance for Travelers to Enter the U.S. at Land Ports of Entry and Ferry Terminals | Homeland Security (dhs.gov) , Frequently Asked Questions: Guidance for Travelers to Enter the U.S. at Land Ports of Entry and Ferry Terminals | Homeland Security (dhs.gov), and this summary guidance. 

Elizabeth Poh Rejoins CML

Cowan Miller & Lederman is pleased to announce that Attorney Elizabeth Poh has rejoined the firm. She was previously with the firm from 2015 to 2018. Her practice focuses on business and family-based immigration. She enjoys working with employers of all sizes to develop tailored and streamlined immigration processes to promote the hiring and retention of global talent.  She also works with scientists, artists, entrepreneurs, and other highly skilled individuals to secure appropriate work visas/green cards. We are thrilled to have Elizabeth back at Cowan Miller & Lederman. She can be reached at epoh@cmlseattle.com or (206) 866-6105.