- Immigration Update: USCIS Settlement Expedites Many Long Delayed H-4 and L-2 EAD Spouse Work Permits
Immigration Update: USCIS Settlement Expedites Many Long Delayed H-4 and L-2 EAD Spouse Work Permits
By Jan Pederson
Last week, USCIS settled a lawsuit filed on March 22, 2021 filed by 101 spouses of H-1B workers who hold H-4 status and spouses of L-1 workers who hold L-2 status. Under certain conditions, the H-4 and L-2 spouses are granted employment authorization. Unfortunately, obtaining these work permits and the actual visa status increased during the Trump years to up to two years. Many high skilled and needed workers with H-4 and L-2 status were thrown out of work during this time. Former President Trump, in a blatant attempt to rid the country of H-4 EAD workers, imposed additional processing hurdles that harmed employers and the H-4 workers, causing untold harm to our work force and to the H-4 and L-2 talented workers.
The new policy, expected to go into effect on January 25, 2023 will permit the prior practice of bundling H-1B petitions with H-4 applications and H-4 EAD requests so that all will be adjudicated at the same time if filed together. Bundling refers to the processing by USCIS of multiple forms together as a package. However, the rule that requires that an I-140 immigrant petition be approved for the H-1B worker before the H-4 spouse is eligible for an EAD remains. USCIS is to be applauded for taking steps to right a wrong that should never have occurred.
In addition to honoring bundling these applications together so they are adjudicated together, the bundling extends to both petitions filed for premium processing and regular processing. No more will family applications carefully filed together be torn apart by USCIS. Premium processing requires USCIS to adjudicate the H-1B petition within 15 calendar days, or return the $2500 premium processing fee. For many years the adjudication of the H-4 change or extension or status applications and EAD applications were adjudicated together with the H-1B petition/extension. In the past four years, H-4 spouses had to leave their work and the H-4 spouses and children waited up to two years to obtain proof of lawful status and work permission.
USCIS will not render simultaneous adjudications with the H-1B petition is not filed together with the H-4 and H-4 EAD applications. Bundling applies to both initial H-1B petitions and H-1B extension petitions. Other provisions of the settlement provide that a timely filed H-4 EAD extension request will permit the H-4 worker to work for 540 days while the extension request is pending or the date the extension is decided. This provides additional certainty to employers and H-4 workers that they will no longer be thrown out of their jobs due to USCIS inaction on their cases.
If the H-1B does not have an approved I-140, there are several strategies that might be pursued to obtain an approved I-140, particularly those petitions where employment sponsorship is not required, such as EB1A for those of extraordinary ability; EB2 NIW for those of exceptional ability and EB2 Physician National Interest Petitions (PNIW) for physicians. As of January 30, 2023, USCIS will now process all EB1 petitions, as well as all EB2 NIW and PNIW petitions through premium processing for an extra $2500.00 USCIS processing fee. The premium processing time for the new I-140s is 45 days.
The bundling rule will apply to pending cases. In the settlement, L-2 spouses are granted work permission incident to status without the need to apply for employment authorization. The settlement is valid for two years.