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Explained: What the US allowing automatic job authorisation for spouses of H-1B visa holders means for Indians abroad

The US government’s latest immigrant-friendly policy amendment is likely to be particularly beneficial for Indian women whose spouses hold H-1B or L-1 visas, as they will now be allowed up to 180 days auto extension on work authorisation.

By: Explained Desk | New Delhi |
Updated: November 16, 2021 1:28:31 pm
A US court has directed the US Citizenship and Immigration Services (USCIS) to allow up to 180 days auto extension on work authorisation for spouses of L-1 and H-1B visa holders. (File)

The United States has agreed to provide automatic work authorisation permits to the spouses of H-1B visa holders — a move that is likely to benefit thousands of Indian professionals based in the US.

This comes after the American Immigration Lawyers’ Association filed a class-action lawsuit on behalf of immigrant spouses, many of whom have lost their jobs due to long processing delays for work authorisation.

A US court has directed the US Citizenship and Immigration Services (USCIS) to allow up to 180 days auto extension on work authorisation for spouses of L-1 and H-1B visa holders. While L-1 spouses will be given the extension without applying for it, H-4 visa holders will still have to apply for the extension after their employment permit expires.

H-4 and L2 visas: What’s the difference?

The US government’s latest immigrant-friendly policy amendment is likely to be particularly beneficial for Indian women whose spouses hold H-1B or L-1 visas, as they will now be allowed up to 180 days auto extension on work authorisation.

An H-4 visa is issued by the US Citizenship and Immigration Services (USCIS) to the immediate family members (spouse and children under the age of 21) of H-1B visa holders. According to government data, over 94 per cent of H4 visa holders are women, and of these, around 93 per cent are from India.

L-1 visas are non-immigrant visas that are valid for a relatively short time. With this visa, multinationals are able to shift foreign employees to their US offices for specialised positions on a temporary basis. The dependent spouse or unmarried children under 21 years of age of an L-1 visa holder are issued L-2 visas to enter the United States. L2 visa holders can acquire EAD (Employment Authorisation Documents) to find employment.

What does this mean for H-4 and L-2 visa holders?

The USCIS will now have to grant up to 180 days auto extension on work authorisation for spouses of L-1 and H-1B visa holders. But while L-1 spouses will get the extension without applying for it, the H-4 visa will still have to apply for the extension once their employment permit expires.

“Despite the plain statutory language, USCIS failed to grant employment authorisation incident to status for L-2s. The other issue relates to H-4s whose work permits expire prior to their H-4 status; this is a group that always met the regulatory test for automatic extension of EADs, but the agency previously prohibited them from that benefit and forced them to wait for reauthorisation,” Jon Wasden, one of AILA’s litigation partners said.

The move is likely to remove some of the bottlenecks in the USCIS’ policies which forced many of the spouses of L-1 and H1-B visa holders out of their jobs. Significantly, a large proportion of H-1B visa holders are IT professionals from India working in US firms.

Previously, the Obama administration had given work authorisation to some categories of H-4 visa holders. According to government data, over 90,000 H-4 visa holders have received work authorisation so far.

What led to the policy change?

This comes after the American Immigration Lawyers Association (AILA) achieved a historic settlement with the Department of Homeland Security in the case of Shergill, et al. v. Mayorkas, which was filed on behalf of L-2 and H-4 plaintiffs who sought reauthorisation or extensions of employment.

Shergill was an extension of an earlier pending lawsuit, filed in March 2021, which also sought lawful status and work authorisation. In the Shergill case, AILA argued that due to processing delays for work authorisation, dependents of H-1B and L-1 principal visa holders were being forced out of employment.

In fact, one of the plaintiffs of the case was an Indian named Divya Jayaraj, who came to the US to study and returned as the spouse of an H-1B visa holder, Forbes reported. “Concurrent with her spouse’s extension, on August 25, 2020, she filed applications to extend her H-4 status on Form I-539 and EAD on Form I-765,” the lawsuit states. Divya later lost her job “because of agency inaction.”

“This (H-4 visa holders) is a group that always met the regulatory test for automatic extension of EADs (employment authorisation documents), but the agency previously prohibited them from that benefit and forced them to wait for reauthorisation. People were suffering. They were losing their high-paying jobs for absolutely no legitimate reason causing harm to them and US businesses,” Jon Wasden from the association said, according to PTI.

The settlement reverses the USCIS’ previous policy which prohibited H-4 visa holders from obtaining automatic extensions of their employment authorisation during the pendency of their EAD applications. It also allows L-2 visa holders automatic work authorisation based upon their underlying status, which means the spouses of executives and managers will not have to apply for EADs before working in the US.

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