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ImmIGRATION APRIL 23, 2021 | The Indian Eye 48
coPing witH delays facing H-4 and l-2 sPouses
WHen THey Have a pending
adjusTmenT applicaTiOn – parT 2
cyrus d. meHTa extension and Advance elling abroad poses a ing the AOS when both cessing.
isaBel rajaBzadeH* Parole (AP) processing. conundrum. In order to the H-1B and AOS are does an l-2 spouse
A lthough H-4 and threat to abandonment is still processing, one There is an inherent Out of the many
This blog tackles the preserve the AOS that pending.
need an ead?
L-2
extensions
of AOS when traveling needs to have either AP vagueness as to whether
continue to be
delayed since our last internationally while AP or valid H-4/L-2 status the Cronin memo ap- downfalls of the H-4/L-2
and H-4/L-2 are process- before leaving. Accord- plies to derivatives since processing delays, one
blog “Coping with De- ing. We also discuss the ingly, 8 CFR 245.2(a)(4) H-4s and L-2s are not of the most significant
lays Facing H-4 and L-2 complex interplay with (ii)(B)-(C) outlines two mentioned in the memo is the Employment Au-
Spouses”, we highlight employment authoriza- distinct pathways. Under in respect to this issue. thorization Document
another issue, which tion for H-4/L-2 spouses (B), it allows those with One may however argue, (EAD) processing gaps
adds further hardship who have pending AOS approved AP to leave through anecdotal expe- afflicting families around
for H-4 and L-2 spouses applications. the country and then rience, that the Cronin the nation. At large, this
faced with unjust pro- subsequently return in Memo should apply to issue has subjected many
cessing delays. In Octo- Preserving H-4 and AP without abandoning H-4s and L-2s and there- spouses and their fami-
ber 2020, the EB-3 Dates l-2 status when an their AOS, absent any fore, the H-4/L-2 should lies to financial struggle,
for Filing in the Visa aos is Pending specific situations out- be able to enter the Unit- and it remains a leading
Bulletin advanced sig- Since the H-1B and lined in the regulation. ed States in AP and be issue that the USCIS and
nificantly, which allowed L visas allow for dual Under (C), the same is able to switch to H-4/L-2 the Biden administra-
many born in India to intent, it is possible to true for those who leave status once the H-4/L-2 tion must immediately
file Form I-485, Adjust- maintain H or L non- in H-4/L-2 status and re- extension is approved. resolve. The hardship
ment of Status (AOS) immigrant status while turn in H-4/L-2. is compounded by the
applications. The surge an AOS application for In 2000, the Cronin Preserving adjustment fact that there are de-
in AOS cases, coupled permanent residence has Memo was published and of status when lays in the processing of
with the H-4/L-2 pro- been filed. clarified that although an advanced Parole and the EAD under both the
cessing delays, have left Due to the delays H-1B or L is considered H-4 are Pending AOS and the H-4/L-2.
many with the inability in the processing of to be paroled after enter- What happens when Nonetheless, there may
to travel abroad as they H-4/L-2 extensions and ing the United States via an H-4 has a pending be an arguable legal basis
await both their H-4/L-2 requests for EAD, trav- AP, he/she is still able to AOS and has not re- for an L-2 spouse to en-
apply for an extension of ceived AP or H-4 ap- gage in employment with-
H-1B or L if there was a proval but wants to travel out obtaining an EAD.
valid and approved peti- based on an emergency? In the Matter of Do
tion. Upon the granting This issue is two-fold and Kyung Lee, the Board
of the H-1B or L exten- is specifically applica- of Immigration Appeals
sion, the grant of parole ble to those whose prior (BIA) held that employ-
would be terminated, H-4/L-2 statuses have ment authorization is in-
and the H-1B applicant expired and have timely cident to E-2 status. INA
would then be admitted filed their extensions but 214(e)(6) explicitly states
into the relevant H-1B still await processing. As that an E-2 spouse shall
status. Although the mentioned before in our be authorized to engage
Cronin Memo contem- prior blog, although the in employment. In this
plates one who is already H-4 can get a visa stamp unpublished decision,
in H-1B and L status be- at a US consulate, the the BIA reasoned that
fore traveling abroad and AOS may be deemed the regulation at 8 CFR
being paroled via AP, it abandoned if the H-4 left 274a.12(c)(2) only spec-
could also apply to one the US without H-4 sta- ified that the dependent
who has a pending ex- tus or AP. spouse and child of an
tension of H-1B or L-1 In this scenario, the E-1 visa holder must ap-
status application and only recourse for the H-4 ply for work authoriza-
m of who traveled abroad un- is to apply for an emer- tion, but the same regu-
CYRUS D. MEHTA & PARTNERS PLLC der AP and was paroled gency AP by calling the lation did not specifically
into the US. Likewise, USCIS 800 number to state that the spouse of
upon the approval of the schedule an appoint- an E-2 must do the
H-1B or L-1 request, the ment with the local US- same. The Court held
parole would be termi- CIS office, however, it that since INA 214(e)
nated, and the beneficia- is not definite that one (6) specifically autho-
ry would be admitted in will be able to connect to rized the E-2 spouse to
H-1B or L status. This al- a live-person, let alone engage in employment,
lows the H-1B beneficia- convince the USCIS that the E-2 spouse’s failure
2 6th Floor ry to travel abroad while the emergency qualifies to apply for an EAD did
simultaneously preserv- for expeditious AP pro- not result in a violation
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