- Emily McIntosh
Lawsuit filed against USCIS for requiring biometrics for H-4 spouses
What is the H-4 visa?
H-4 visa is a dependent visa given to the family (spouses & children) of foreign nationals who are on H-1B (work visa).
What is H-4 EAD?
The H-4 EAD is the employment authorization document that the spouses receive to legally work in the U.S. This authorization was granted to H-4 visa holders in 2015 under the Obama administration.
What has changed?
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 and your spouse has gotten a job through their H-4 EAD status. Now, if your H-1B were up for renewal, your spouse’s H-4 and EAD would also need to be renewed. Even if your employer files the H-1B renewal six months in advance, your spouse would lose their job because waiting for their H-4 petition approval for 18 months would mean that their employment authorization would expire.
What does the lawsuit say?
The lawsuit alleges that USCIS acted in bad faith against the spouses of H-1B visa holders. The plaintiffs say that USCIS added an unnecessary biometrics requirement by erroneously interpreting the government regulations, prohibiting automatic extensions of H-4 work authorization.
Does the new rule Premium Processing expansion help?
Congress recently expanded premium processing to include employment authorization. This, however, does not help spouses on H-4 because of the biometrics requirements since the biometrics is a prerequisite that needs to be met before the premium process takes effect.
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.