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for USCIS to expand the list of solved. It should not be taking already an underlying status, noncitizen. Even under these extension is denied prior to the
categories eligible to receive upwards of 6 months to process the USCIS has authority under general provisions there is no 240 days. The spouse should
automatic EAD extensions to such status extension requests the INA to craft a whole new requirement that there must also be able to avail of a similar
include this narrowly defined when the biometric require- regulation that does not depend be an underlying nonimmi- period of 240 days of automat-
category of E, L, and H-4 depen- ment has been done away with. on automatic extension only if grant status in order to avail of ic work authorization even if
dent spouses to mitigate the risk The Edakunni v. Mayorkas there is an underlying L-2, H-4 automatic work authorization the underlying H-4, L-2 or E-2
extension. Even if INA 214(c)
status has expired so long as the
of experiencing gaps in employ- lawsuit seeks to force USCIS 274a.13(d)(1)(iii) can poten-Simply go to your App Store or Play Store
or E-2 status.
ment authorization and docu- to speed up processing times. Furthermore, 8 CFR (2)(E) and INA 214(e)(2) can request was made before the
mentation while their renewal USCIS can include courtesy be read to mean that a spouse status had expired. If the un-
Form I-765 is pending, in light of premium processing of H-4, L-2 tially be challenged as being is precluded from availing of an derlying request for extension
their continued employment el- and E-2 status request applica- inconsistent with INA 214(c) auto extension once the status of status is denied prior to the
igibility past the expiration date tions that are part of a request (2)(E) and INA 214(e)(2) that has expired, 8 CFR 274a.13(d) 240 days, the automatic work
of their EAD. for premium processing of the provide work authorization in- (1)(iii) might still be inconsis- authorization will be denied.
While the new H-4, L-2
tent with the general authority
cident to status to L-2 and E-2
The USCIS believes that principal spouse’s H-1B, L-1 or in these INA provisions that a From SmartTV Download ZingoTV App
this change in interpretation E petition. Also do not forget spouses. Nowhere does it state to provide work authorization and E-2 work authorization
is permissible under 8 CFR that Congress in HR 8837 has under INA 274A(h)(3). policy of November 12, 2021 is
274a.13(d)(1)(iii) that speaks authorized premium process- spouse who has been admitted Under its authority under a step in the right direction, it
broadly of “class” and “catego- ing of many more petitions and in L-2 or E-2 status must re- INA 274A(h)(3), DHS may should not become the perma-
ry.” As these terms are unde- applications, including applica- main in status in order to avail wish to promulgate a regulation nent policy of the USCIS as it is
fined and thus ambiguous, un- tions to change or extend status of an automatic extension of similar to 8 CFR 274a.12(b)(20) far from perfect.
der the broad deference courts as well as applications for em- status. Although there is not Login|Register with your eMail then
work authorization when ap-
As long as the USCIS de-
that provides for an automatic
have granted to a government ployment authorization. plying for an extension of that extension of work authorization lays in the processing of routine
agency to interpret its own am- More important, the US- for 240 days when a petition requests for extension of status
biguous regulation, see Auer v. CIS need not be cabined by the direct INA reference for H-4 to extend nonimmigrant status and work authorization con-
Robbins, 519 US 452 (1997) as restrictive language in 8 CFR authorization incident to sta- has been timely filed on behalf tinue to persist, the regulations
modified by Kisor v. Wilke, 588 274a.13(d)(1)(iii) which pro- tus, the H-4 EAD rule is based of a nonimmigrant through the need to be changed in order to
US ___ (2019), USCIS believes vides for automatic extension on the general authority given same employer prior to the sta- allow spouses to continue work-
tus expiring. The 240 day auto-
it has the discretion to interpret where the EAD renewal appli- to the DHS under INA 103(1) Start Watching IndiaLife TV 24 Hours LIVE
ing regardless of whether there
these terms and tailor desig- cation is “[b]ased on a class of and 274A(h)(3) that allows it to matic extension will be denied is an underlying nonimmigrant
nated categories to emerging aliens whose eligibility to apply grant work authorization to any if the petition requesting the status or not.
circumstances and to fulfill the for employment authorization _____________________________________________________________________________________________
primary purpose of the EAD continues notwithstanding ex- Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of
auto-extension. piration of the Employment Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation
While one agrees that US- Authorization Document and Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immi-
CIS does have discretion to rein- is based on an employment au- gration matters to the Departmental Disciplinary Committee, Appellate Division, First Department, New York;
You can click www.indialife.tv
terpret 8 CFR 274a.13(d)(1(iii) thorization category that does member of the ABA Commission on Immigration; board member of Volunteers for Legal Services and board
to include auto extensions for not require adjudication of an member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the Amer-
H-4, L-2 and E-2 spouses, this underlying application or peti- ican Immigration Council and former chair of the Committee on Immigration and Nationality Law of the New
is not the most satisfactory out- tion before adjudication of the York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
come and should be challenging renewal application.” While the on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled
Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing
the USCIS to do more. USCIS has threaded the diffi- the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts
on your browser and watch IndiaLife TV 24 Hours
For starters, if the USCIS cult needle in its November 12, in providing pro bono representation in the immigration field. He has also received two AILA Presidential Com-
processes extension requests of 2021 policy by justifying that 8 mendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America
H-4, L-2 and E-2 statuses more CFR 274a.13(d)(1)(iii) is nev- by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers
rapidly, this problem will be re- ertheless applicable if there is Global 2019 in immigration law, among other rankings.
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