Lawsuit against USCIS by AILA about H-4 and L-2 delays
Updated: May 10, 2021
UPDATE: May 04, 2021
USCIS announced today that, beginning May 17, 2021, it will suspend biometrics requirements for H-4, L-2, and certain E non-immigrant categories. Read more....
On March 22, 2021 the American Immigration Lawyers Association (AILA) and Wasden Banias, LLP filed a class action lawsuit against the Department of Homeland Security (DHS) in which they have challenged the long processing delays on extensions of status and extensions of employment authorization documents (EAD) for H-4 and L-2 nonimmigrant spouses.
What outcomes can we expect?
If the lawsuit succeeds, we expect the backlog for H-2 and L-2 EADs to clear up by the summer. WayLit is closely monitoring this lawsuit and will make updates to this page as and when more information becomes available.
What is the H-4 or L-2 visa?
H-4 and L-2 visas are dependent visa given to the family (spouses & children) of foreign nationals who are on H-1B or L-1 work visas.
What is an EAD?
The EAD is the Employment Authorization Document that the individuals on H-4 or L-2 visas receive to legally work in the U.S. This authorization was granted to H-4 visa holders in 2015 under the Obama administration.
Why the lawsuit?
Prior to March 2019, USCIS would adjudicate the H-4 petition for a dependent and their EAD application at the same time as the H-1B petition. Further, the petition could be filed with premium processing to get the decision within 15 days. USCIS first decoupled the H-1B and H-4 petitions and then on March 30, 2019, the agency announced it would now require Biometrics for “H-4 extension applications”. This resulted in the wait times for H-4 EADs to grow from 3 months to up to 18 months in some locations.
Who does this impact?
Imagine, that you were on H-1B or L-1 visa and your spouse has gotten a job through their EAD status. Now, if your H-1B or L-1 were up for renewal, your spouse’s H-4/L-2 and EAD would also need to be renewed. Even if your employer files the renewal six months in advance, your spouse would lose their job because waiting for their H-4/L-2 petition approval for 18 months would mean that their employment authorization would expire.
What does the lawsuit say?
Jennifer Minear, President of AILA, said that “The delays that H-4 and L-2 nonimmigrants are facing needlessly place families in financial limbo. DHS has the legal tools and authority to grant work authorization to impacted individuals whose financial security is hanging in the balance, and it should immediately begin to use those tools to provide solutions. DHS can and must revoke the unnecessary biometrics requirements for H-4 and L-2 nonimmigrants, provide automatic work authorization while DHS processes EAD renewal requests, and allow EAD applicants to file their renewal applications sooner than 180 days prior to EAD expiration to prevent gaps in work authorization.”
In addition, Jesse Bless, AILA’s Director of Federal Litigation, said that “In 2019, the Trump administration implemented a new biometrics requirement for H-4 and L-2 and other dependents seeking to extend their stay in the U.S. These new requirements added to the already extraordinary processing delays—delays that COVID-19 restrictions further exacerbated. The process to attain work authorization should not put families at risk of immense loss of income and instability. There are reasonable and immediate steps that DHS can take to make certain that visa holders meet requirements without imposing needless suffering. We hope to work with the government on immediate solutions to get these individuals back working.”
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.