(Via AILA.org) Major Settlement Changes How USCIS Adjudicates Work Permits for [H-4 and L-2 ] Nonimmigrant Spouses
AILA and its litigation partners entered into a settlement agreement with DHS that provides structural changes for H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. (Shergill, et al. v. Mayorkas, 11/10/21)
Within 120 days of the Effective Date, USCIS will amend the receipt notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.
USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes.
FOR IMMEDIATE RELEASE
Wednesday, November 10, 2021
Washington, DC – The American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown, celebrate the historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. 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 executive and managers will no longer have to apply for employment authorization prior to working in the United States.
Jesse Bless, AILA Director of Federal Litigation stated, “Today marks a historic change for L-2 spouses who will now enjoy work authorization incident to status. AILA’s membership has long advocated for the correct statutory interpretation and we’re delighted to have reached this agreement, which includes relief for H-4 spouses, through our litigation efforts with Wasden Banias and Steven Brown. It is gratifying that the administration saw that settling the litigation for nonimmigrant spouses was something that should be done, and done quickly.”
Jon Wasden stated, “After years of outreach to the agency, it became clear that litigation was unfortunately necessary. Despite the plain statutory language, USCIS failed to grant employment authorization 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 reauthorization. People were suffering. They were losing their high-paying jobs for absolutely no legitimate reason causing harm to them and U.S. businesses. So, while I’m glad the agency finally followed the law, it is frankly frustrating that an easily fixable issue took this long to address.”
See this op-ed from Forbes for more information
Read the Decision: Shergill, et al. v. Mayorkas, 11/10/21 [PDF]
DHS confirms it is currently enjoined from implementing or enforcing any part of the USCIS Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements rule
“On Sept. 29, 2020, the U.S. District Court for the Northern District of California, in Immigration Legal Resource Center et al., v. Wolf, et al., 20-cv-05883-JWS, preliminarily enjoined DHS from implementing or enforcing any part of the USCIS Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements rule.
While the rule is preliminarily enjoined, we will continue to:
Updated Again: For October 2020 Visa Bulletin USCIS Previously Indicated that it would accept EB AOS Applications based on “Final Action Dates” but now the same website indicates it will accept “Dates for Filing”
DOS has posted the October 2020 visa bulletin. In addition to final action dates and dates for filing for family and employment-based petitions, it contains notes on the DV category, the DV category rank cut-offs which will apply in November, movement of the October final action and application filing dates, visa availability in the coming months, and the scheduled expiration of two employment categories, including the employment fourth preference certain religious workers (SR) and employment fifth preference categories (I5 and R5). The FY2021 annual limit for employment-based visas is approximately 261,500.
For EB India in particular, the October 2020 visa bulletin notes the following advancements:
Final Action Dates:
EB1 India: June 1, 2018
EB2 India: September 1, 2009
EB3 India: January 15, 2010
EB1 India: September 1, 2020
EB2 India: May 15, 2011
EB3 India: January 1, 2015
Update: Late afternoon on 09/24/2020, USCIS indicated that it will accept adjustment of status applications for employment-based petitions based on the Final Action dates, but around 3:13pm CST the same webpage appears to have been updated to now indicate that “Dates for Filing” are to be used.
At present, this material change remains unexplained and is generating significant confusion. It goes without saying that the delivery of accurate and consistent information by USCIS is extremely critical, particularly in this case, where “Dates for Filing” = 5+ years less wait time for EB3 India.
Indian Nationals File Lawsuit Challenging Presidential Proclamation 10052’s H-1B/H-4 Visa Ban
A group of 174 Indian nationals, including seven minor children, filed a lawsuit in the U.S. District Court for the District of Columbia challenging Presidential Proclamation 10052, which took effect on June 24, 2020, and temporarily suspends entry of certain H, J, and L nonimmigrants into the United States. The plaintiffs seek an order declaring Proclamation 10052 to be unlawful, compelling DHS to issue decisions on their pending requests for H-1B and H-4 visas, and enjoining DHS from refusing entry into the United States based on the proclamation, among other relief.
(Panda, et al. v. Wolf, et al., 7/14/20)
Trump Administration rescinds rule requiring International Students to transfer or leave the country if their schools held classes entirely online because of the Coronavirus Pandemic
Good news for international students: DHS just did another one of its 180 degree pirouettes. Facing several federal lawsuits as well as vigorous opposition from hundreds of universities, the Trump Administration today rescinded a rule that would have required international students to transfer or leave the country if their schools held classes entirely online because of the coronavirus pandemic. DHS has agreed to fully rescind the July 6, 2020, ICE guidance and July 7, 2020, Frequently Asked Questions, and rescind all implementing guidance. The status quo based upon the agency’s March 13, 2020, guidance will remain in force.
Ashwin Sharma quoted by the Times of India on USCIS’s latest Policy Memo, a Major Victory for H-1B Consulting Firms/Employees
I was quoted today in a Times of India article on USCIS’s issuance of a game-changing new policy memorandum yesterday in which it rescinds and replaces two previous policy memoranda (2010, 2018) regarding the adjudication of H-1B petitions for professionals assigned to third-party job sites.
Among its other directives, the memo instructs USCIS officers to stop requiring H-1B employers to provide job itineraries for H-1B candidates as well as private contractual documentation between third-party client/vendor companies. The memo advises USCIS officers to refrain from issuing ridiculously short approval durations in these cases (as little as 1-2 months). The memo also makes it easier for an H-1B employer to demonstrate an eligible Employer-Employee relationship with its H-1B employee.
In summary: though USCIS still maintains arrows in its quiver to target the H-1B program, the new guidance represents extremely positive news for H-1B stakeholders, particularly those within the consulting industry. The policy guidance is effective immediately, and applies to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.
Supreme Court Upholds DACA
The U.S. Supreme Court today ruled that the Department of Homeland Security (DHS)’s decision to rescind the Deferred Action for Childhood Arrivals Program, also known as DACA, was arbitrary and capricious under the Administrative Procedure Act. As a result, the Trump administration may not immediately proceed with its plan to end a program protecting about 700,000 young immigrants known as Dreamers from deportation.
See DHS v. Regents of the University of California (Link to PDF)
Ashwin Sharma Quoted by the Times of India Regarding Issues Faced by Laid-Off H-1B Workers
“Sharma also said H-1B employees face another challenge. The inability of an employee to continue working and retaining insurance benefits because of USCIS’s historic delays in adjudicating extensions (again, for the H-1B in particular, the present unavailability of the premium processing option leaves H-1B employers and employees in a very difficult predicament). “The USCIS’s delay can severely impact an H-1B/EAD (employment authorisation document), employee’s ability to maintain their employment and associated insurance benefits by placing them in a gray area – they may be lawful to remain in the USA during this time, but they cannot work until USCIS approves their H-1B or EAD in these cases,” he said.”
Ashwin Sharma quoted in the Times of India re: the President’s Immigration Suspension and the possible future impact to Nonimmigrant visas such as the H-1B
“Ashwin Sharma, Jacksonville-based immigration attorney, told TOI, “At present the proclamation has left untouched the vulnerable visas in the non-immigrant categories. However, section 6 of the proclamation is deeply concerning as it leaves the door open to a future attack on the H-1B and other work visas.”
Sharma hopes that the President has no further plans to attack the H-1B and other non-immigrant visas under the guise of ‘protecting the American worker’. He wondered whether the proclamation is a subtle and first test of the waters. According to him, US will need its skills gap filled by H-1B and other professional workers in the long recovery from the ravages of Covid-19.”
Attorney Sharma quoted again by the Times of India about the Presidential Proclamation Suspending Entry of Certain Immigrants (formerly known as the “Immigration Ban”)
“Ashwin Sharma, Florida based immigration attorney told TOI, “As per this proclamation, the categories most impacted would include green cards for parents and siblings of US citizens, and for spouses and children of green card holders.”
Sharma says, “The Presidents proclamation is illogical. It characterizes a 65-year-old parent of a US citizen as a greater threat to the American worker than the same US citizen’s 20-year-old son. The proclamation is also disingenuous in that in that it is attempting to rebrand the existing processing delays caused by Covid-19 as a targeted ‘suspension’ to shift public scrutiny away from the administration’s delays in addressing the pandemic, and onto its favourite scapegoat, immigrants.”
Ashwin Sharma quoted by the Times of India on President Trump’s Threat to issue Executive Order Banning Immigration during the Pandemic
Ashwin Sharma, Jacksonville based immigration attorney told TOI,
“This is the umpteenth incarnation of this same threat and this one in particular seems toothless and impotent, though it’s always an effective dogwhistle for his anti-immigration supporters. Anytime President Trump needs an escape from facts and critics, he is quick to break the glass door labelled “Break in Case of Emergency” to whip out an executive order on Immigration.
Sharma added, “The simple fact is that courts will block any such overbroad executive order. Plus immigrants aren’t exactly lining up to get into America at the moment. And the ones that are here are helping American companies stay afloat, treating American COVID19 patients, researching virus cures, supporting healthcare technology, delivering food and supplies, and other key roles.”
UPDATE: AILA REPORTS VSC OPEN — ORIGINAL POST: AILA Reports that USCIS’s Vermont Service Center Is Temporarily Closed on April 10, 2020 due to COVID19
Via AILA.org – April 13, 2020
“Last week, USCIS informed employees about a presumed positive COVID-19 case in the Vermont Service Center (VSC), but the test results came back negative. The VSC is now able to accept files and/or any other form of correspondence.”
Via AILA.org – April 10, 2020
“AILA has received reports from various members that the Vermont Service Center (VSC) has been closed due to a potential COVID-19 exposure.
VSC will likely be closed at least until Wednesday April 15, 2020, for cleaning. During this time, it appears that mail cannot be delivered to the VSC. AILA National has reached out to USCIS for confirmation and further guidance on how filings should be handled in the interim. Updates will be provided as soon as more information is available.”
On behalf of myself and other Immigration Lawyers across the US: our prayers are with the VSC Staff. The volume of complex cases they assess and adjudicate every day is underappreciated, as is the critical importance of their work. We hope this issue is cleared up soon, and that the people at VSC are safe.
Ashwin Sharma interviewed by News4Jax’s I-TEAM on on the Legality of the Biden Admin’s Decision to Land “Migrant Flights” in Jacksonville, FL
Read News4Jax’s Article