Organizations struggling to find specialized talent could find some relief as the Biden administration and the American Immigration Lawyers Association on Nov. 10 reached a settlement in a lawsuit that provides structural changes for nonimmigrant H-4 and L-2 visa holders.
What the lawsuit won for talent, firms
The AILA in September filed the federal class-action lawsuit against the US Department of Homeland Security with the US District Court for the Western District of Washington. It argued that US Citizenship and Immigration Services had unlawfully delayed the processing of some spouses’ visa applications, forcing them out of employment and creating gaps in work authorization. Under the terms of the settlement, USCIS will now give L-2 spouses automatic work authorization and they will no longer have to apply for a separate work permit before arriving in the US; spouses with an H-4 visa will receive automatic work-permit extensions.
The visa structure. H-4 visas are issued to spouses and dependent children of H-1B, H-1B1, H-2A, H-2B and H-3 visa holders. The H-1B program allows US employers to hire foreign workers in specialty occupations requiring a bachelor’s or higher degree in a specific specialty — such as IT and healthcare.
L-2 visas are available to the spouses and dependent children of those working in the US under an Intracompany Transferee Visa (L-1 visa).
Visa spouse policy. The Biden administration’s position is a wholesale reversal of visa-spouse policy under Trump, according to a Dice blog post. “The Trump administration spent years trying to kill the H-4 [employment authorization document], which allows spouses (but not other dependents) of H-1B workers to find jobs of their own,” it stated. “That push led to some brutal court fights.”
“Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executives and managers will no longer have to apply for employment authorization prior to working in the United States,” the AILA stated.
The change will benefit tens of thousands of immigrants, primarily Indian women, who are the spouses of H-1B and L-1 visa holders who were caught in a months-long backlog to receive their work permits, The Wall Street Journal reported.
Easing employer uncertainty. These changes will also reduce uncertainty for US employers seeking to hire and retain workers with L-2 and H-4 visas as it reduces the risk that their employees will face unavoidable lapses in work authorization that require immediate cessation of all work activities, according to a JD Supra blog post by law firm Littler. What is not yet clear is exactly what employers can expect during the implementation of these new rules in order to maintain compliance with the I-9 Employment Eligibility Verification process required for all individuals working in the US.
Creating Jobs? Critics argue that programs such as the H-4 take jobs away from American citizens. Advocates suggest that those with H-4 visas, by being allowed to work, contribute to the American economy; last year, the Cato Institute argued that the “employment authorization has also allowed workers to launch businesses that employ tens of thousands of Americans.”
And while this settlement agreement provides some relief for spouses of H-1B and L-1 visa holders, the settlement agreement still contains limitations, law firm Morgan Lewis wrote in a JD Supra blog post. For example, the automatic extension can be fairly limited if the end-date on their I-94 arrival-departure record is in the near future. With the ongoing delays in processing EAD renewals, the automatic extension limitations may not resolve the issue of a potential gap in work authorization.
Morgan Lewis encouraged employers to continue tracking expiration dates for H-4 and L-2 spouses who may need to file EAD renewals so that the applications can be prepared in advance and filed in a timely manner.
The case is Shergill, et al. v. Mayorkas.