U.S. Citizenship and Immigration Services (USCIS) has issued new policy guidance following the November 10, 2021 settlement agreement discussed in our previous Shumaker Immigration Bulletin blog post. As of November 12, 2021, USCIS has updated its I-9 Handbook and is allowing certain automatic extensions of Employment Authorization Document (EAD) cards for H-4, L-2, and E-1 Dependent, E-2 Dependent, or E-3 Dependent (“E dependent”) visa holders.
H-4, L-2, and E Dependent Spouses
The new guidance indicates that USCIS will also soon provide EADs incident to status for L-2 spouses, E-1 Treaty Trader dependent spouses, E-2 Investor dependent spouses, and E-3 specialty occupation professionals from Australia dependent spouses. Meaning, once the policy takes effect, L-2 and E dependent spouses will be authorized to work without applying for an EAD.
H-4, L-2, and E dependent spouses will qualify for an automatic extension of their valid EAD expiration if they:
- Properly file a Form I-765 EAD renewal application prior to expiration; and
- Continue to maintain H-4, L-2, or E dependent status beyond the expiration of the existing EAD as evidenced on Form I-94.
The expired EAD will considered valid until the earliest of the following periods:
- 10 days following expiration;
- Expiration of the H-4 / L-2 / E dependent nonimmigrant’s I-94 record; or
- When USCIS issues a final decision on the EAD extension application.
Continue reading “USCIS Announces Employment Authorization Policy Changes for certain H-4, E, and L Dependent EAD Workers”
Today, the American Immigration Lawyers Association (“AILA”) and its litigation partners achieved a historic settlement with the Department of Homeland Security (“DHS”) in Shergill, et al. v. Mayorkas, Case 2:21-cv-01296, 9/23/21 in the U.S. District Court for the Western District of Washington.
In Shergill, AILA brought a class action lawsuit on behalf of H-4 and L-2 spouse who had applied for work authorization as the dependents of H-1B and L-1 principal visa holders, but had faced processing delays, forcing them out of employment and creating gaps in work authorization.
The parties’ settlement reverses a U.S. Citizenship and Immigration Services (“USCIS”) policy that prohibited H-4 spouses from obtaining automatic extensions of their employment authorization during the pendency of standalone employment authorization document (“EAD”) applications. The settlement represents a massive change in position by USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization based upon their underlying status, meaning spouses of executives and managers will no longer have to apply for EADs prior to working in the United States. Continue reading “Breaking News: Major Settlement Changes How USCIS Will Adjudicate Employment Authorization Documents for Nonimmigrant Spouses”
Beginning November 8, 2021, adult foreign nationals traveling to the United States by air, with limited exceptions, must demonstrate proof of full vaccination against COVID-19 and must also provide a negative COVID-19 test taken in the past 3 days.
This new global travel system replaces the existing country-by-country restrictions, putting in place a consistent approach worldwide. Airlines will be responsible for verifying the vaccination and testing status of their passengers.
Unvaccinated travelers – whether U.S. citizens, LPRs, or the small number of excepted unvaccinated foreign nationals – will now need to show documentation of a negative viral test from a sample taken within 1 day of travel to the United States. Continue reading “U.S. Announces Updates to International Air Travel Vaccine Policy”
Each month, the U.S. Department of State’s Visa Office (V.O.) compiles an update to the “waiting list” for immigrants from countries subject to the quota system under the Immigration and Nationality Act.
The total number of documentarily complete applicants reported to V.O. are compared each month with the numbers available for the next regular allotment of visas that may be issued. Numbers are then allocated to reported applicants in order of their priority dates, with the oldest dates processed first.
If there are enough visa numbers available in a particular category to satisfy the demand of documentarily complete applicants, the category is considered “current.” For example, if the Employment First preference monthly target is 5,000 and there are only 3,000 applicants, the category is “current.”
However, when the total number of documentarily complete applicants in a visa category exceeds the available supply of visa numbers allotted for the upcoming month, the category is considered “oversubscribed,” and a visa availability final action date is established. This results in visa “retrogression,” which refers to situations when there are more visa applicants for a certain category or country than there are available visas for that month. Continue reading “November 2021 Visa Bulletin Signals Severe Retrogression for Indian EB-3 Visas”
On October 12, 2021, the U.S. Department of Homeland Security directed ICE, CBP, and USCIS to take actions to promote a fair labor market by supporting more effective enforcement of wage protections, workplace safety, labor rights, and other employment laws and standards.
“The Department of Homeland Security has a critical role to ensure our Nation’s workplaces comply with our laws,” said U.S. Department of Homeland Security Secretary Alejandro Mayorkas. “We will not tolerate unscrupulous employers who exploit unauthorized workers, conduct illegal activities, or impose unsafe working conditions. Employers engaged in illegal acts compel the focus of our enforcement resources. By adopting policies that focus on the most unscrupulous employers, we will protect workers as well as legitimate American businesses.”
In accordance with a memorandum issued by Secretary Mayorkas on October 12, ICE, CBP, and USCIS will develop and update policies to enhance DHS’s enforcement of employment and labor standards. The agencies must also develop strategies for prioritizing workplace enforcement against unscrupulous employers and, through the exercise of prosecutorial discretion, facilitate the participation of vulnerable workers in labor standards investigations. Employers who shirk employment regulations not only harm workers, they also unfairly drive down business costs and disadvantage their business competitors who abide by the law. Continue reading “DHS Releases Worksite Enforcement Strategy to Protect the American Labor Market, the Dignity of Workers, and Worksite Conditions”
Without a doubt, COVID-19 has had a disruptive effect on almost every aspect of our lives. The extraordinary and unprecedented public health emergency COVID-19 created has caused different businesses and government agencies to unexpectedly shutter their operations in order to minimize the spread of this virus. One unintended consequence is that COVID-19 has forced U.S. Citizenship and Immigration Service (USCIS) processing of cases to come to a virtual standstill. As a result, the production of certain Employment Authorization Documents (Form I-766, EAD), among other things, has been delayed. Because failure to receive an EAD document can result in a foreign national not being able to continue to work (and ultimately) a termination, a lawsuit has been brought against USCIS in the U.S. District Court for the Southern District of Ohio (Easter Division) challenging the delay in issuance of the employment authorization document (EAD) following approval of the I-765 application.
Today, USCIS announced that employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document to establish employment authorization issued by the Department of Homeland Security pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization. This newly created exception to the Form I-9 rules will expire on December 1, 2020. Additionally, please note that employees will still be required to present a List B document to establish their identity. Continue reading “USCIS permits use of approval notices as evidence of work authorization due to COVID-19 delays”