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Delays facing H-4+ L-2 visa holders

Who are H-4 and L-2 Visa Holders? 

H-4 visas are available for certain family members of individuals who hold H-1, H-2, and H-3 visas. The H-4 visa allows certain family members to live in the United States along with their family member who holds a H-1, H-2, or H-3 visa. Thus, in order to be approved for a H-4 visa, your family member must hold one of the above visas. For example, a H-1B visa is a type of H-1 visa. Thus, certain family members of a H-1B visa holder will qualify for a H-4 visa.

The L-2 visa allows certain family members of a L-1A or L-1B visa holder to come to the United States. The L-2 visa is a temporary nonimmigrant visa specifically for the spouses and unmarried children under 21 years of age of a L-1A or L-1B visa holder who wish to accompany the visa holder in the United States. 

Common Delays Facing H-4 and L-2 Spouses and Children

Much like the processing times of nearly all visas, the H-4 and L-2 visas have faced significant processing delays due to the COVID-19 pandemic. However, certain processing requirements for H-4 and L-2 visa applicants have also contributed to lengthy delays. 

Biometrics Screening Delay When Extending Family Status 

In 2019, the Trump Administration began the requirement that H-4 and L-2 visa holders sit for a biometrics screening appointment when these visa holders are applying to extend their visa status on Form I-539, Application to Extend/Change Nonimmigrant Status. This biometrics requirement has caused increased delays that have become problematic for visa holders seeking an Employment Authorization Document (EAD) or attempting to travel while their Form I-539 is pending. This delay is increasingly frustrating when a principal applicant can move through processing quickly through premium processing while delays for H-4 or L-2 spouses last for a year or more. Thankfully, the biometrics is now waived for most of these cases. 

Obtaining an Employment Authorization Document (EAD)

L-2 and H-4 visa holders may apply for an Employment Authorization Document (EAD) to work in the United States. Delays in the process for obtaining an EAD for H-4 and L-2 visa holders have compounded delays caused by the biometrics requirement and the COVID-19 pandemic. Delays for EAD approval exist for individuals applying under adjustment of status, or as H-4 or L-2 visa holders. 

Travelling Outside the U.S. While H-4 Visa is Pending

Technically, H-4 visa holders who have applied for an extension of their status may travel outside the United States while their extension application is pending. This is different for applicants whose application for a change of status to H-4 is still pending. For adjustment of status cases, travelling outside the US will result in abandonment of the adjustment until the Advance Parole is approved.. However, issues can arise when travelling while an extension application is pending, simply due to general slowdowns at Consulates and Embassies. Thus, it is best to plan ahead so that any documentation issues are avoided. 

When entering the United States, a visa holder is permitted entry based on their H-4 visa, while the Form I-94, Request Travel History and Check Travel Compliance is what allows the H-4 visa holder to stay in the United States. A new Form I-94 is created with U.S. Customs and Border Protection when an H-4 visa is granted abroad or an extension is approved while the visa holder is travelling. It is important that the Form I-94 match the visa in order to avoid delays when entering the United States. 

Accrual of Unlawful Status

Delays caused by COVID-19 and other processing issues can cause H-4 and L-2 visa holders to fall out of status if no decision is made by the expiration of H-4 or L-2 status. A visa holder who falls out of status and remains in the United States under unlawful status will accrue unlawful presence, and the visa holder may be subject to three-year long or ten-year long bars from the United States. 

Visa holders who are applying to extend their status by filing Form I-539 before the expiration date listed on their Form I-94 will not accrue unlawful presence while a decision is being made on the visa holder’s extension of status. If a visa holder’s Form I-539 is denied, they will begin accruing unlawful presence. An individual who is unlawfully present in the United States for 180 days or more will face a three year bar from the United States that will begin once the individual leaves the U.S. 

What is the Future of Delays? 

In a March 2021 letter sent to the United States Citizenship and Immigration Services (USCIS), 28 separate organizations outlined serious impacts caused by the delays and argued that the USCIS adopt certain policies to end or reduce delays. In particular, the letter discussed the outsized impact the delays have on women seeking an EAD and the impact on EAD-seekers generally. The letter also proposed solutions to the delays, including by eliminating unnecessary biometrics; granting automatic extensions for timely-filed EAD applications; and allowing earlier filing of EAD renewals.

The letter’s signatories included major U.S. companies such as Apple, Facebook, Google, and Amazon, as well as major associations such as the American Immigration Lawyers Association (AILA) and the United States Chamber of Commerce.

In May 2021, the USCIS finally removed the biometrics requirement for H-4 and L-2 visa holders filing Form I-539. The USCIS said it “retains discretion” to require applicants to submit to a biometrics screening on a case-by-case basis. 

This decision was in response to a lawsuit against the USCIS, Edakunni v. Mayorkas. Plaintiffs are suing in Washington federal court to end the delays that H-4 and L-2 visa holders are facing by arguing that the delays are unreasonable under the law. The USCIS, on the other hand, argues in part that the delays are not unreasonable because they are a consequence of the COVID-19 pandemic.

In support of the plaintiffs’ lawsuit are several major U.S. companies and business associations, including the United States Chamber of Commerce, Microsoft, Twitter, and Google. These entities, along with several others, submitted their own amicus brief that highlights how the delays negatively impact the U.S. economy, the talent of its worker pool, and the lives of workers who make life-changing decisions to come to the United States. 

Currently, the litigation for Edakunni v. Mayorkas is on-going as the plaintiffs file reply briefs to the defendant’s response in September 2021. The plaintiffs, who consist of numerous aggrieved visa holders from several, consolidated cases, are moving closer to certifying the case as a class action lawsuit. 

In a very recent decision In Shergill v. Mayorkas, It was held that L-2 spouses will no longer have to apply for work authorization and need an EAD (Employment Authorization Document) as proof in order to work in the United States,” said Jesse Bless, director of litigation at the American Immigration Lawyers Association (AILA), in an interview. “For H-4 spouses who have lawful status and merely need to renew their employment authorization, they will now enjoy an automatic extension of their authorization for 180 days after expiration should the agency fail to process their timely-filed applications.”W.D. Wash.)

In November 12, 2021, USCIS updated its Policy Manual to permit H-4, E and L nonimmigrant dependent spouses to receive automatic extension of employment authorization in certain circumstances. Earlier in the week, USCIS announced that it would implement new policies for H-4 and L spouses within 120 days. In updating its Policy Manual, USCIS moved quickly to implement the new polices and to expand the benefits to E spouses.

AUTOMATIC EXTENSION OF EADS – H-4, E and L Spouses

Effective immediately, nonimmigrant H-4, E and L spouses qualify for an automatic extension of their Employment Authorization Document (EAD) when they file to renew their EAD provided:

  • The I-765 application to renew the EAD is filed prior to the EAD expiration date and
  • The H-4, E or L spouse has an unexpired I-94 showing valid underlying nonimmigrant status.

For purposes of Form I-9 employment verification purposes, the nonimmigrant spouse may present the following as evidence of work authorization:

  1. Unexpired Form I-94 showing valid H-4, E or L-2 nonimmigrant status;
  2. Facially Expired EAD; and
  3. Form I-797C (Notice of Action/Receipt) showing a timely filed I-765 EAD renewal application

The automatic extension of the EAD is valid until:

  • Expiration of the underlying Form I-94;
  • 180 days from the prior EAD expiration; or
  • Adjudication of the I-765 extension application, whichever comes first.

L AND E SPOUSES – EMPLOYMENT AUTHORIZED INCIDENTAL TO STATUS

USCIS also clarified that it will consider L and E dependent spouses to be employment authorized incidental to their status. This means that upon admission and issuance of a valid I-94 document showing L-2 or E spousal status, E and L nonimmigrant spouses will automatically be authorized to work without the need to apply for an EAD. This applies only to E and L spouses. It does not apply to H-4 spouses or H-4, E or L dependent children.

The Department of Homeland Security (DHS) will immediately take steps to modify Forms I-94 to distinguish E and L dependent spouses from dependent children. Once changes to the Form I-94 are made, the new Form I-94 with the spousal annotation will serve as evidence of employment authorization as a List C document for Form I-9 employment verification eligibility purposes. Only a Form I-94 annotated as an L-2 or E “spouse” may serve as evidence of employment authorization. An L or E spouse with an I-94 that does not bear the new spousal annotation must also present an EAD for employment authorization purposes.

In November 12, 2021, USCIS updated its Policy Manual to permit H-4, E and L nonimmigrant dependent spouses to receive automatic extension of employment authorization in certain circumstances. Earlier in the week, USCIS announced that it would implement new policies for H-4 and L spouses within 120 days. In updating its Policy Manual, USCIS moved quickly to implement the new polices and to expand the benefits to E spouses.

AUTOMATIC EXTENSION OF EADS – H-4, E and L Spouses

Effective immediately, nonimmigrant H-4, E and L spouses qualify for an automatic extension of their Employment Authorization Document (EAD) when they file to renew their EAD provided:

The I-765 application to renew the EAD is filed prior to the EAD expiration date and

The H-4, E or L spouse has an unexpired I-94 showing valid underlying nonimmigrant status.

For purposes of Form I-9 employment verification purposes, the nonimmigrant spouse may present the following as evidence of work authorization:

Unexpired Form I-94 showing valid H-4, E or L-2 nonimmigrant status;

Facially Expired EAD; and

Form I-797C (Notice of Action/Receipt) showing a timely filed I-765 EAD renewal application

The automatic extension of the EAD is valid until:

Expiration of the underlying Form I-94;

180 days from the prior EAD expiration; or

Adjudication of the I-765 extension application, whichever comes first.

L AND E SPOUSES – EMPLOYMENT AUTHORIZED INCIDENTAL TO STATUS

USCIS also clarified that it will consider L and E dependent spouses to be employment authorized incidental to their status. This means that upon admission and issuance of a valid I-94 document showing L-2 or E spousal status, E and L nonimmigrant spouses will automatically be authorized to work without the need to apply for an EAD. This applies only to E and L spouses. It does not apply to H-4 spouses or H-4, E or L dependent children.

The Department of Homeland Security (DHS) will immediately take steps to modify Forms I-94 to distinguish E and L dependent spouses from dependent children. Once changes to the Form I-94 are made, the new Form I-94 with the spousal annotation will serve as evidence of employment authorization as a List C document for Form I-9 employment verification eligibility purposes. Only a Form I-94 annotated as an L-2 or E “spouse” may serve as evidence of employment authorization. An L or E spouse with an I-94 that does not bear the new spousal annotation must also present an EAD for employment authorization purposes.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

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