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ImmIGRATION APRIL 23, 2021 | The Indian Eye 49

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of status. Based on the ment. The Department ministration, as revealed ment will go a long way sion in Do Kyung Lee, an
reasoning of this BIA de- of Homeland Security in a recent WSJ article, in eliminating the de- E-2 or L-2 spouse who
cision, the same logic can (DHS) under the Obama that the biometric re- lays facing H-2 and L-2 engages in employment
be applied to L-2 spous- administration specifi- quirement was necessary spouses as they can then without an EAD will not
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es since INA 214(c)(2) cally created a regulation so that dependents did be processed under the be viewed as engaging in
(E) explicitly authorizes which authorizes EAD not misrepresent them- premium processing re- unauthorized employ-
L-2 spouses to engage for an H-4 under 8 CFR selves is spurious. Until quest filed through the ment. Therefore, even if
in employment. The 274a.12(c)(26), based on 2019, there was never a principal spouse’s H-1B the Biden administration
regulations at 8 CFR implied authority in the biometric requirement or L-1 petition. The cannot speed up EAD
274a.12 do not have a INA to issue work autho- when dependents filed DHS should also initi- processing quickly, it
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specific category for L-2 rization to any class of I-539s, and there were no ate premium processing can officially pronounce
spouses, and USCIS re- noncitizens. The Trump widespread incidents of for EAD requests since that L-2 and E-2 spouses
quires L-2 spouses to administration tried to such misrepresentations. Congress authorized ad- need not obtain an EAD.
use the catchall reserved unsuccessfully rescind Many of these depen- ditional premium pro-
provision under 8 CFR the rule as it was hostile dents were already vet- cessing last year. Finally, (This blog is for infor-
274a.12(a)(18). towards H-4 EADs, but ted when they obtained since INA 214(c)(2)(E) mational purposes and
Nevertheless, this could not get it past the H-4 and L-2 visa stamps explicitly authorizes an should not be viewed as a
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is still a gray area and Office of Management at US consulates. More- L-2 spouse to engage in substitute for legal advice.)
E-2 and L-2 spouses are and Budget. The Trump over, subjecting infants employment, what is the
therefore still recom- administration then im- and toddlers seeking H-4 need to require the L-2 *Isabel Rajabzadeh is
mended to apply for an posed the biometric and L-2 extensions to spouse to go through the an Associate at Cyrus D.
EAD. Even if the reason- requirement for every this is downright cruel. lengthy process of apply- Mehta & Partners PLLC
ing of this unpublished I-539 extension, which in Eliminating this unnec- ing for an EAD? Under and is admitted to prac-
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BIA decision is accepted turn delayed the grant of essary biometric require- the logic of the BIA deci- tice law in New York.
by the USCIS, a lack of the H-4 EAD. The pan- _________________________________________________________________________________________________
EAD could potentially demic that followed in Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing
trigger I-9 noncompli- March 2020 caused fur- Partner of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s
Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics
ance issues with respect ther delays and backlogs. Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
to the employer as ICE Appellate Division, First Department, New York; member of the ABA Commission on Immigra-
may not recognize the conclusion tion; board member of Volunteers for Legal Services and board member of New York Immigration
holding of an unpub- We reiterate our re- Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration
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lished BIA decision. quest that the Biden ad- Council and former chair of the Committee on Immigration and Nationality Law of the New
York City Bar Association. He is a frequent speaker and writer on various immigration-related
The reasoning of this ministration remove the issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where
BIA decision is not ap- biometric requirement he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith
pliable to H-4 spouses as imposed by the prior Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
there is no explicit INA Trump administration Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation
in the immigration field. He has also received two AILA Presidential Commendations in 2010
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provision that specifical- when an I-539 applica- and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by
ly authorizes H-4 spous- tion is filed. The justifi- Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
es to engage in employ- cation by the Trump ad- Chambers Global 2019 in immigration law, among other rankings.

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