US District Judge Tanya Chutkan dismissed a law suit brought by Save Jobs USA against U.S. Department of Homeland Security (15-cv-0015, US District Court, District of Columbia) which challenged the rights of certain highly skilled H-1B visa holders’ spouses to work in the US. Judge Chutkan upheld rule which grants certain H-4 visa holders the right for work authorization parallel to their spouses’ H-1B visa validity for employment in the US. The same Judge had previously dismissed the suit, ruling that Save Jobs lacked standing to challenge the H-4 rule. However, a federal appeals court reversed that ruling in 2019 and revived the case.
Read moreTemporary Increase of Automatic Extension Period for Certain Renewal Applicants’ Employment Authorization
United States Citizenship and Immigration Services (“USCIS”) adopted a Temporary Final Rule (“TFR”) on May 4, 2022, to increase the automatic extension period for employment authorization and Employment Authorization Documents (“EADs”) available to certain EAD renewal applicants. Previously, work authorization granted to foreign nationals who had filed a timely Form I-765 application to renew certain categories of EADs was automatically extended for 180 days. The new rule will effectively increase this period to up to 540 days from the expiration date stated on the EAD. During the eighteen month period after publication of the TFR, eligible applicants with a timely-filed, pending Form I-765 renewal application will receive up to 360 days of additional automatic extension time (for a total of up to 540 days).
Read moreUSCIS Policy Update for Employment Authorization of H-4, L, and E Dependent Spouses
Shergill et al, v Mayorkas (21-cv-1296-RSM), a class action lawsuit, was filed by The American Immigration Lawyers Association (“AILA”) and its litigation partners Wasden Banias and Steven Brown, to address the extensive delays at United States Citizenship and Immigration Services (“USCIS”) in processing Employment Authorization Document (EAD) applications for dependent spouses of H-1B and L nonimmigrant visa holders. On November 10, 2021, AILA announced a settlement had been reached with the U.S. Department of Homeland Security (DHS) in the Shergill case, under which USCIS agreed to allow continued work authorization for certain H-4 and L-2 EAD applicants whose applications remained pending with USCIS. USCIS reversed its policy that prevented H-4 spouses “from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications.” USCIS also agreed to implement policy guidance within 120 days to provide work authorization for L-2 spouses without requiring an EAD card.
Read moreBiden Administration Has Withdrawn Trump-Era Move to Rescind Work Authorization for H-4 Spouses
The Biden administration has withdrawn a Trump-era regulation that would have rescinded work authorization for H-4 visa holders. On January 25, 2021, the Office of Information and Regulatory Affairs (OIRA), which is under the Office of Management and Budget (OMB), withdrew the proposed regulation titled, "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” Although the Trump administration had announced they would seek to remove the H-4 work authorization, they were not able to complete the process. Since according to a 2018 report by Congressional Research Service (CRS), ninety-three per cent of approved applications for H-4 employment authorization were issued to Indian nationals, this move especially welcomed by the Indian immigrant community.
Can I Freelance on My Nonimmigrant Visa? Limitations and Opportunities in the US Immigration System
It is more and more common for people to want to structure their careers free from the ties of a standard employer/employee relationship. What used to be the standard nine-to-five job with the same employer is becoming less and less suited to the new ways that people work. For many people who work in the arts especially, working on projects for multiple employers is the best way to structure their work. However, doing myriad projects for multiple clients or employers can be challenging under the current immigration system and visa structures. While the US has a clear interest in protecting US workers and ensuring foreign nationals do not come to the US without actual work lined up, the immigration system fails to properly allow for the increasing trend of people working under a freelance model.
Read moreUS State Department Significantly Increases Reciprocity Fees for Australian Nationals in Certain Visa Categories
Effective December 23, 2019, the Department of State (DOS) adjusted the reciprocity schedule for Australia for certain nonimmigrant visa categories. This change in the reciprocity schedule is a result of Executive Order 13780 (“Protecting the Nation from Foreign Terrorist Entry into the United States”), signed by President Trump in March 2017, that required the DOS to undertake a worldwide review of nonimmigrant visa reciprocity agreements and arrangements to ensure that US nationals receive “reciprocal treatment in terms of validities and fees as that afforded to host country nationals, as required by US law.”
Read moreForbes: "Trump Plans Far-Reaching Set of New Immigration Regulations"
The Department of Homeland Security released the Unified Agenda this month showing that the Trump administration is proposing new immigration regulations that would have a dramatic effect on employers, international students, H-1B and L-1 visa holders, EB-5 investors, and asylum seekers, among others. Stuart Anderson, executive director of the National Foundation for American Policy, writes in Forbes that the agenda is "ambitious and far-reaching" and an "attempt to lock into place changes to immigration policy that cannot be easily undone, regardless of the outcome of the 2020 presidential election."
Read moreBloomberg Law: “Proposal to Undo Guestworker Spouse Work Permits Coming Soon”
A proposed rule to reverse an Obama administration regulation granting employment authorization to the spouses of certain H-1B workers is expected to proceed within the next three months. The 2015 regulation provides work authorization to the spouses of certain H-1B workers who are seeking employment-based lawful permanent resident status. Bloomberg Law says that more than 90,000 work cards have been issued, the majority of them granted to women from India.
Read moreThe Guardian: “Silicon Valley's reluctant housewives: immigration law bars women from work”
For many people landing a job at a tech company in Silicon Valley is a dream come true. Years of hard work, talent, and education have finally paid off and led to coveted positions at prestigious companies (with sweet perks). But not everyone making the move to the US benefits. The Guardian takes a look at H-4 spouses–that is, the spouses of H-1B visa holders–and in particular, the wives of Silicon Valley workers who “are integral to the continued success of the Valley’s multibillion-dollar computing industry – but also entirely invisible to it.” Many of these H-4 holders are the spouses of engineers from around the world who work at companies such as Apple, Google, and Facebook.
The majority of H-4 spouses are not authorized to work in the US (except those whose spouses have reached a certain step of their Green Card application). Therefore, many H-4 spouses give up careers in their home country to follow their spouses who have been offered dream jobs and salaries too good to refuse in the US. One new H-4 arrival tells The Guardian: “Before, I was very career-focused…my career was my identity. Coming here has forced me to ask questions: who am I? What am I good at? What are my hobbies?”
This issue is of particular importance to Indian nationals in the US, who make up 80% of the 125,000 H-4 dependent visas. Sandhya Ravindran, a thirty-eight-year-old Indian woman who has lived in the Bay Area since 2007, says “99%” of her social network comprises other Indian H-4 wives. “Honestly? If I had known what life on an H4 would be like, I would not have come,” she says in The Guardian.
While last year the US government extended employment eligibility to certain H-4 visa holders of spouses who are seeking permanent resident status, many are still unable to work. Heather Zachernuk, a thirty-three-year New Zealander whose husband works for Apple, hasn’t been able to work since she arrived in Silicon Valley. “I feel guilt. So much guilt – for having this lifestyle...for resenting my situation even while it’s also a luxury.” The Guardian concludes: “Set against millions of vulnerable migrants, H4 visa holders are lucky. They are safe, and they are wealthy. But their experiences highlight a community of women pushed to the edges of Silicon Valley by an immigration system focused only on meeting corporations’ needs.”
Finally, Work Cards for Some Spouses of H-1Bs
As we previously announced, US Citizenship & Immigration Services (USCIS) will start accepting applications for Employment Authorization Documents (EADs), also commonly known as work cards, for spouses of certain H-1B visa holders on May 26, 2015. In preparation for the massive influx of applications, on May 20, USCIS announced some basic guidelines for these applications.
By way of background, spouses of H-1B visa holders are eligible for H-4 visas as dependents of the H-1B. H-4s are valid for only as long as the principal H-1B is valid and until now H-4 holders have not been allowed to work. As part of the executive actions announced in November last year, it was ordered that spouses of certain H-1B visa holders be granted work authorization. These spouses have to apply for work authorization using Form I-765 and once they receive their work card, they can begin working.
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