Page 38 - The Indian EYE 121021

IMMIGRATION DECEMBER 10, 2021 | The Indian Eye 38

The Legal Basis Underpinning the New Automatic
Extension of Work Authorization for H-4, L-2 and E-2

Spouses, and Why It Must Still Be Challenged

CYRuS D. MEHTA qualify for an automatic exten- newal application, and facially H-1B status. However, if the of work authorization until the
sion provided under 8 CFR § expired EAD may be acceptable H-4 spouse needs to obtain a L-2 status is approved.
he USCIS has been pro- 274a.13(d) if certain conditions to evidence unexpired work au- new visa stamp, it is difficult to On November 18, 2016,
cessing employment au- are met. thorization for employment el- obtain consular appointments DHS promulgated the automat-
Tthorization requests for The new policy provides igibility verification (Form I-9) timely as a result of Covid-19. ic extension of EAD regulation
H-4 and L-2 spouses so slowly that certain H-4, E or L de- purposes. Another work around at 8 CFR 274a.13(d), which took
that they have been rendered pendent spouses qualify for Although this new policy would be for the H-4 spouse effect on January 17, 2017. 8
virtually useless. By the time the automatic extension of their is a positive step, as a practi- to go to Canada for less than CFR 274a.13(d) provides the
applicant receives the employ- existing employment authoriza- cal matter, many H-4 spouses 30 days and be readmitted un- legal underpinning for Novem-
ment authorization document tion and accompanying EAD if may not be able to avail of the der automatic visa revalidation ber 12, 2021 policy. An appli-
(EAD) after 10 months, the job they properly file application to automatic extension if they are provided for trips to Canada or cant is eligible for automatic
offer no longer exists. The expe- renew their H-4, E or L-based unable to demonstrate an H-4 Mexico that are less than 30 days. extension if the EAD renewal
rience is even more harrowing EAD expires, and they have an status beyond the expiration of The difficulty with this strategy, is timely filed and based on the
when the spouse begins work- unexpired I-94 showing their their existing EAD. Most H-4 though, is that the CBP often same employment authoriza-
ing under the first EAD and has status as an H-4, E or L nonim- statuses and EAD end on the admits the H-4 spouse under tion category as shown on the
to apply for a renewal. By the migrant. The policy further pro- same date. the same period of the existing face of the expiring EAD. See
time the renewal EAD comes vides that E and L dependent Even if an H-1B extension status instead of admitting the 8 CFR 274a.13(d)(1)(i) and (ii).
through, the spouse would have spouses are employment autho- is filed on behalf of the princi- spouse for an extended period Under 8 CFR 274a.13(d)(1)(iii)
been forced to stop working af- rized incident to their status and pal spouse under premium pro- that would be coterminous with automatic extension may also
ter the prior EAD expired and therefore they are no longer re- cessing six months before the the H-1B spouse’s new status. apply where the EAD renewal
often loses her job. Most H-4 quired to file Form I-765 for an existing H-1B status expires, the L-2 and E-2 spouses are application is “[b]ased on a class
spouses who have availed of the EAD but may still do so if they USCIS no longer processes the in a better situation that H-4 of aliens whose eligibility to ap-
EAD are mainly women and choose to request an EAD. Still, extension of the H-4 status in an spouses. INA 214(c)(2)(E) pro- ply for employment authoriza-
spouses of Indian born H-1B the E and L dependent spouse expeditious manner. Thus, even vides statutory authority for tion continues notwithstanding
visa holders who are caught may only qualify for an automat- if the H-1B status is renewed dependent spouses of L non- expiration of the Employment
in the crushing India employ- ic extension if they have an un- under premium processing immigrants to be granted work Authorization Document and
ment-based backlogs under the expired valid E-2 or L-2 status. within 15 days for an additional authorization. INA 214(c)(2) is based on an employment au-
second and third preferences. Accordingly, a document 3 years, the H-4 status contin- provides similar work authori- thorization category that does
Following a recent settle- combination to include an un- ues to remain pending and may zation for dependent spouses. not require adjudication of an
ment in Shergill v. Mayorkas, expired Form I-94, Form I-797C or may not get approved before Notwithstanding this statutory underlying application or peti-
USCIS announced on Novem- (Notice of Action) showing a the expiration of the current H-4 authorization that took effect tion before adjudication of the
ber 12, 2021, that certain H-4, timely filed employment autho- status. If the H-4 status is not re- on January 16, 2002 providing renewal application, …. As may
E, or L dependent spouses will rization document (EAD) re- newed prior to the expiration of for work authorization incident be announced on the USICS
the current H-4 status, the to status, USCIS was still insist- Web site.”
spouse will not be able to ing that L-2 and EAD spouses The page on the USCIS
avail of the auto extension obtain an EAD through a pol- Website listed 15 categories for
under the new policy. icy memo authored by William automatic extension of their
It would thus behoove Yates dated February 22, 2002, employment authorization or
the USCIS to courtesy pre- “Guidance on Employment EAD. However, the November
mium process the H-4 sta- Authorization for E and L Non- 12, 2021 USCIS Policy Memo
tus extension request along immigrant Spouses, and for De- acknowledges that E and L as
with the H-1B premium terminations on the Requisite well as H-4 spouses were missing
request. This used to be Employment Authorization for from this list, as follows:
done prior to the imposi- E and L Nonimmigrant Souses, These broad categories
tion by the Trump admin- and for Determinations on the were not included because at
istration of a mandatory Requisite Employment Abroad the time the automatic exten-
biometrics appointment for L Blanket Petitions.” (Yates sion authority was established
for an extension request Memo). The November 12, in 2016, USCIS determined that
filed by the spouse. As a 2021 guidance has now rescind- these applicants are in a catego-
result of the new biomet- ed the Yates Memo. ry that first requires adjudica-
ric requirement, the H-4 As a result of being rec- tion of an underlying applica-
spouse’s extension request ognized to be work authorized tion before their EAD renewal
was no longer processed incident to status, L-2 and E-2 application can be adjudicated.
along with the H-1B premi- spouses will be able to work [citation omitted]. While that is
um request. Although the when their L-2 or E-2 status is a permissible interpretation of
biometric requirement has extended. CBP will notate the the regulation, upon further re-
been eliminated for H-4 I-94 to distinguish the L-2 or E-2 view and consideration, USCIS
spouse extension requests, spouse from E and L children. recognizes that this interpreta-
the USCIS continues to Unlike the H-4 spouse who tion does not contemplate the
process these cases at a will need to apply for an EAD situation where the E, L, and H4
m of snail’s pace. It is difficult based on status that already dependent spouse has already
been granted a new period of
to understand why the US-
extends beyond the EAD ex-
CYRUS D. MEHTA & PARTNERS PLLC CIS is unable to process the tension request, the L-2 spouse authorized stay and such indi-
H-4 request along with the will be able to work as soon as vidual is eligible for employment
H-1B premium request at the E-2 or L-2 status is granted. authorization past the expira-

the same time as was done Similarly, the spouse who is ad- tion of his or her EAD while the
before the imposition of mitted after travelling to the US renewal Form I-765 application

  the biometric requirement. in L-2 or E-2 spouse will also is pending. Under this scenario,
   
­ Another way to get be issued an I-94 with a similar the possible risk the provision at
€
‚  
around the limitation of notation from the CBP and be 8 CFR 274a.13(d)(1)(iii) sought
having H-4 status beyond work authorized after admission to avoid—the risk that a Form
the EAD is for the H-4 in that status. However, like with I-765 renewal applicant’s eligi-
the H-4 spouse, when the L-2
bility for employment authori-
spouse to travel overseas
and return with an I-94 that spouse applies for an extension zation will lapse during the auto-
2 6th Floor would have the same valid- of that status, there will be no matic extension period—is not

    ity as the principal spouse’s basis for an automatic extension present. As such, it is reasonable
www.TheIndianEYE.com