U.S. Citizenship and Immigration Services (“USCIS”), a division of the Department of Homeland Security (“DHS”), has agreed to change its policies concerning employment authorization document (“EAD”) applications for the spouses of L, E and H-1B visa holders. The change comes as a result of settlement of the litigation entitled Shergill et al. v. Mayorkas, Case No. 21-cv-1296-RSM, which involved a challenge to USCIS policy as to spouses of L-1 intracompany transfer visa holders (referred to as “L spouses”) and spouses of H-1B visa holders (referred to as “H-4 spouses”). Spouses of E visa holders (referred to as “E spouses”) were the subject of a separate litigation, but the decision to include them may make the E spouse litigation moot.

Automatic Extension of EADs for E, L and H-4 Spouses

DHS regulations generally provide for automatic extension of EADs and employment authorization for EAD renewal applicants if their EAD renewal application is timely filed and based on the same employment authorization category as shown on the face of the expiring EAD. Yet, until the November 12th policy change, E, L and H-4 spouses were not included on the list of visa categories eligible for an automatic extension. USCIS claims that this was intentional, as the agency believed in 2016 that these categories required adjudication of the underlying application before their EAD renewal could be adjudicated. The concern was that EADs could be extended beyond the validity of the underlying visa. However, by conditioning the expansion to E, L and H-4 EAD renewals under the new policy on proof that the underlying status has already been extended, these concerns are now moot according to USCIS.

In recent years, EAD renewal applications have been approaching crisis-level processing times, causing gaps in employment authorization for even the most proactive of spouse workers. Without proof of employment authorization, employers have been forced to terminate the spouse employees or place them on unpaid leave to avoid violating the law against hiring or continuing to employ unauthorized workers. In addition to hurting the employers of the spouses, the principal visa holder was also suffering from the unpredictability of secondary income. USCIS noted in the new policy that the purpose of the auto-extension provision was intended to “help prevent gaps in employment authorization” and “provide additional stability and certainty to employment-authorized individuals and their U.S. employers,” so its expansion under the new policy will better meet those lofty goals.

The guidance clarifies that employers may accept the following combination of documents as evidence of an automatic extension:

  1. Form I-94, indicating the unexpired nonimmigrant status (H-4, E or L);
  2. Form I-797C, Notice of Action, showing a timely-filed renewal application (timeliness determined by comparing the date of receipt on the Form I-797C with the date of expiration on the expired EAD) stating “Class Requested” as “(a)(17),” “(a)(18),” or “(c)(26)”; and
  3. The facially-expired EAD issued under the same category as the “Class Requested” on the renewal application.

The length of the automatic extension will be the shorter of: (a) the end date on the Form I-94 showing valid status, (b) the approval/denial of the EAD renewal application, or (c) 180 days from the expiration date of the current EAD. Once the EAD renewal application is approved, the employer should complete a Section 3 Reverification on the Form I-9 to reflect the new expiration date of the worker’s employment authorization.

Reading between the lines, the new policy may require a new workflow for L, E and H-4 spouses. Since the policy clearly indicates that the automatic extension can only be granted in situations where status extends beyond the expiration of the EAD, the extension of status may already need to be approved in order to take advantage of an effective automatic extension. Thus, if you continue to file the EAD renewal application concurrently with the Form I-539 status extension, your automatic extension may only be valid until the date of the expiring Form I-94. Alternatively, if the EAD renewal application is filed after the extension of status is already granted, the spouse employee would enjoy the full benefit of the automatic extension. Further guidance is necessary to discern USCIS’ preference for or against concurrent filing. Individuals with currently pending concurrent filings may want to explore whether they should exit and reenter the U.S. to receive an extension of status through the consulate, thereby triggering the automatic extension to the later date of their extended status. Regardless, the new policy highlights the importance of filing the change of status as soon as possible, since approval of the Form I-539 is crucial to getting a sufficient automatic extension.

Work Authorization Incident to Status for E and L Spouses

Previously, L and E spouses did not automatically receive a work authorization incident to their L-2 status, despite clear statutory entitlement under Public Laws 107-125 and 107-124. Pursuant to the 2002 Yates Memo, the Service had, instead, mandated that L and E spouse visa holders file applications to change/extend their status and separate applications for an employment authorization on the basis of that status. These inconsistencies have now be resolved and the Yates Memo has been expressly superseded by the new policy. E and L spouses will now enjoy a work authorization incident to their status, obviating the need to apply separately for an EAD, unless they choose to renew the EAD, which remains available but is now optional.

E and L spouses will now be eligible to work as soon as their status is approved (meaning, without needing to file a separate application for a work authorization using Form I-765). However, USCIS has stated that the I-94 indicating valid L or E spouse status will suffice as a List C document for Form I-9 purposes only once the form indicates that the I-94 is for a spouse of the principal immigrant. Since current I-94s do not indicate that the individual is a spouse (as opposed to a dependent child, who is not allowed to work), DHS has indicated it will work with U.S. Customs and Border Protection (“CBP”) to update the I-94 form. In the interim, until the form is revised and the E/L spouse receives an I-94 with the spousal designation (such as when they next apply to extend status), USCIS recommends that individuals continue presenting an EAD as proof of their work authorization and filing to extend their EAD under the previous process.

It should be noted that the new policy on work authorization incident to status does not apply to spouses of E-2 Long-Term Investors in the Commonwealth of the Northern Mariana Islands (“CNMI”) or to dependents of E nonimmigrant employees of the Taipei Economic and Cultural Representative Office (“TECRO”) or the Taipei Economic and Cultural Offices (“TECO”), who must continue to hold an EAD in order to work.

The new guidance makes it clear that these changes are effective immediately. The news is a welcome relief to employers, as EAD extension applications have been notoriously slow of late, leading to gaps in employment for H-4, E and L spouses. Forcing these employees to be terminated or put on unpaid leave has been disruptive for businesses and a roadblock to retaining talent. The E and L employment authorization incident to status change will also make it easier to convince foreign employees to agree to relocate to the U.S. In the past, spouses of E and L nonimmigrants would frequently have to stop working to allow the principal immigrant to come to the U.S. Now, the E/L spouses can begin working as soon as they arrive in the U.S. with the appropriate Form I-94, making it easier for the families to plan their life in the U.S.

Employers and individuals who have questions about the settlement and new policy guidance should contact their immigration counsel. For employers, make sure your Form I-9 team is trained on these new changes to avoid any confusion in implementation. Employers may also want to make sure their H-4, E and L spouse employees are aware of these changes for employment authorization planning purposes.

New York Field Office Handling N-400 Interviews for New Jersey Residents

Are you a New Jersey resident with a pending N-400, Application for Naturalization, who recently received an interview appointment notice directing you to Federal Plaza in New York City? You are not alone and that is not a typo. As part of a temporary workload shift (for the next approximately 60-90 days), the USCIS New York Field Office will be handling some of the Newark Field Office’s appointments. In short, go to where your interview notice indicates, and do not assume it will be the Newark Field Office just because you reside in northern New Jersey.

December Visa Bulletin

The Department of State (“DOS”) has released the December Visa Bulletin. Priority date cutoffs have advanced incrementally in some employment-based categories.

USCIS has not indicated whether it will allow use of the Dates of Filing chart for either employment- or family-based adjustment of status applications. That announcement should come in short order. We do know that USCIS will not accept any new employment-based fifth preference (“EB-5”) adjustment of status applications based on the Regional Center Program until that program is reauthorized. The EB-4 category for non-minister religious personnel is also set to expire on December 3, 2021, if the program is not further extended.

Key Movement in the January Visa Bulletin:

Employment-Based, First Preference (EB-1) Category

The category remains current for all countries of chargeability.

Employment-Based, Second Preference (EB-2) Category

The EB-2 category remains current for all countries of chargeability except India and China. EB-2 China advances to January 1, 2019. EB-2 India advances to May 1, 2012.

Employment-Based, Third Preference (EB-3) Category

The EB-3 category remains current for all countries of chargeability except India and China. EB-3 China advances to March 22, 2018. EB-3 India remains stationary at January 15, 2012. India EB-2 now has a more favorable cutoff date than India EB-3 again. Workers may want to consider an EB-3 to EB-2 “upgrade” filing.

EB-3 Other Workers

With the exception of China, the cutoff dates for EB-3 Other Workers are the same as each country’s respective EB-3 cutoff dates. For China, the cutoff date for EB-3 Other Workers advances to March 1, 2012.

Employment-Based, Fourth Preference (EB-4) Category

There is no movement from the November 2021 Visa Bulletin in the EB-4 category. And, as described above, the non-minister EB-4 category is in danger of becoming unavailable altogether if Congress does not renew it by midnight on December 2, 2021.

Employment-Based, Fifth Preference (EB-5) Category

The EB-5 Non-Regional Center category remains current for all countries of chargeability, including China which becomes current in December. As discussed above, EB-5 Regional Center cases are currently unavailable because the program expired and has not been renewed. If Congress renews the regional center program, the EB-5 China cutoff date for both Regional Center and Non-Regional Center cases would revert to November 22, 2015. For all other countries, the Regional Center category would be current.