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:
The end date of the individual’s H-4 status as noted on their I-94 document;
The approval or denial of the I-765 EAD application; or
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:
Facially expired EAD indicating category (c)(26);
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
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:
The end date of the individual’s L-2 or E dependent spouse status as noted on their Form I-94;
The approval or denial of the I-765 EAD application; or
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:
Expired EAD indicating category (a)(18) or (a)(17), as appropriate;
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
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.
