On May 11 2022 by Nigel D. James

The Need for Permanent Relief for Spouses of H-1B Holders Suffering from the Employment Authorization Backlog

Many foreign nationals are to benefit from temporary relief recently enacted for USCIS for backlogged employment authorization applications, but more permanent solutions are needed for groups of foreign nationals like those holding H-4 dependent status.

The Department of Homeland Security (“DHS”) recently published a Temporary Final Rule to aid thousands of foreign nationals confronting lengthy delays on the approval of their employment authorization applications. This temporary rule, effective as of May 4, 2022, automatically extends the period of employment authorization for up to 540 days before the current expiration date for foreign nationals who have timely filed to renew. The temporary rule is only applicable to foreign nationals currently working in the United States on certain visas and is a measure in place through October 27, 2023, to help both the United States Citizenship & Immigration Services (USCIS) and foreign nationals alike.

Formerly, the USCIS provided an automatic extension of 180 days past expiration of employment authorization for foreign nationals who filed an extension application prior to expiration, and met other necessary requirements based on their respective visa. Due to the devastating COVID-19 pandemic that is on-going, the USCIS remains significantly impacted in terms of staffing and capability to process cases. This decreased capacity to process initial and extension of employment authorization applications, and other petitions, led to a surge in the number of cases backlogged for processing while also impacting foreign nationals’ ability to renew their drivers’ licenses, maintain their employment, and support their families while in the United States, even with the automatic extension of about six months. There are many examples of foreign nationals waiting more than a year for an approval on their employment authorization application, creating lapses in employment authorization and the inability to continue working for individuals in professions including nurses, physicians, and other healthcare workers, with some employers terminating these individuals and others at a time when the United States needs foreign workers. Moreover, numerous employers like hospitals, universities, and other institutions were immediately challenged with staffing concerns affecting their ability to continue functioning as normal.  

The short-term solution is a welcomed attempt to diminish the case backlog at the USCIS and to allow foreign nationals to continue working while their applications are experiencing long delays to approval. However, the USCIS will need a long-term solution to further ease case processing delays, especially for H-4 dependent spouses of H-1B principal workers. The H-1B visa category is one that allows companies in the United States to hire foreign national workers for specialty positions requiring at least a bachelor’s degree. One added barrier to employment authorization for H-4 dependents is that it requires the principal H-1B visa holder to have started the process to obtain permanent residency in the United States, otherwise known as obtaining a green card. This green card process can take several years to reach the filing stage, in addition to the several years spent waiting for the approval, depending on the H-1B holders’ country of birth and the visa backlog for that respective country. For many H-1B visa holders, their ability to start the process to obtain a green card for their family is solely dependent on their employer, while fewer have other options to start this process that are not dependent on an employer. One potential solution to the delays in H-4 employment authorization processing is to enable these foreign nationals to work incident to obtaining their dependent status.

Recently, spouses who are dependents to principal E visa holders as well as spouses who are dependents to principal L visa holders were authorized to work pursuant to obtaining their dependent status. The E-1 or E-2 visa is available to foreign nationals of certain countries that have treaties of commerce and navigation with the United States who are coming to the United States to conduct substantial trade in goods or invest a substantial amount of money in a company, while the L-1A or L-1B visa allows companies in the United States to transfer an executive, manager, or an employee with specialized knowledge from an affiliated office overseas to one of its offices in the United States. This measure allows these spouses to work immediately upon being granted this status, including on arrival to the United States, and does not require a separate application to obtain employment authorization. H-4 dependent spouses would instantly benefit from this form of relief. Once in place, the USCIS could then explore the removal of H-4 employment authorization being tied to the principal H-1B’s status in the green card process in conjunction with Congress. The impact the ability to work incident to status would have on H-4 spouses’ ability to maintain their employment and support their families, while also reducing the USCIS caseload and allowing more capacity for the USCIS to process other delayed applications and petitions would be tremendous. The United States also benefits economically in having additional workers in the workforce, with employers having a form of assurance that these workers will be able to continue working without a lapse in employment authorization.

An alternative measure that could significantly benefit H-4 dependents, including L or E dependents, would be the ability to premium process dependent applications. Recently, the USCIS also announced plans to expand the ability of foreign nationals to premium process their applications and petitions, which means the ability to pay a government filing fee for action on the application within a particular time period, such as 15 or 30 days. Premium processing from USCIS’ announcement would not go into effect until the 2025 fiscal year for these foreign nationals who are needing assistance as early as possible. Most notably, this relief coming into effect at an earlier date than 2025 would be advantageous for foreign nationals to renew their driver’s licenses and employment authorization if a separate employment authorization application continued to be a requirement. While there have been many proposals in both the House of Representatives and the Senate, there are still needed bipartisan solutions to crucial immigration reform.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the May 11, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.