US allows automatic job authorisation for spouses of H1-B visa holders

This may be applicable to L2 visa holders as well

In a breather to thousands of Indian-Americans, the US administration has agreed to provide automatic work authorisation permits to the spouses of H1-B visa holders, a majority of them are from the Indian IT services.

A settlement was reached by the Department of Homeland Security in a class-action lawsuit filed by the American Immigration Lawyers Association (AILA) on behalf of immigrant spouses this summer.

A H-4 visa is issued to the dependent member of the family of H1-B visa holders. L2 visa is given to dependent spouses and unmarried children under the age of 21 of the person holding L1 visa. L2 visa holder can seek employment opportunity in the US, however holder of H4 visa cannot seek employment opportunity automatically and they need to file an employment authorization document.  

“Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for the USCIS, which now recognises that L-2 spouses enjoy automatic work authorisation incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorisation prior to working in the United States,” the AILA said according to a PTI report.

Moreover, the spouses of L1 visa holders will no longer have to apply for a separate work permit before arriving in the US.

This will be a breather not only in terms of getting clarity on the work environment but also in terms of financial burden because each work permit application costs $495 for submission, according to media reports.

Poorvi Chothani, founder and managing partner, LawQuest, an immigration law firm, said: “This is a huge win for the people who fought for this in a US court. Though the USCIS (US Citizenship and Immigration Services) is yet to come up with specific guidelines, they have agreed to grant automatic extensions to employment authorisation documents (EAD) or work authorisation to qualified H-4 spouses.”

She said: “An H-4 visa holder, spouse of an H-1B worker who is approved for the green card (but can’t be granted the green card), required an EAD card to be able to work in the US. These are generally valid for two years or until the validity of H-4 status ends and have to be extended before the expiry date. In recent times, EAD extensions are taking between six and 12 months to be adjudicated. This required the H-4 worker to stop working until the EAD extension was approved. As part of a court settlement, the USCIS has granted 180-day automatic extensions provided the EAD extension was filed timely. This benefit is also granted to those workers who are on the L-2 visa. In addition, L-2 visa holders no longer require an EAD before they can begin working in the US. The right to work is inherent in the L-2 visa.”

There is no agency that tracks the number of H4 visa holders in the US, according to a Cato Institute write-up. Indians dominate the category with 106,162 H-4 visas issued in 2019.

The H1-B visa application has a cap of 85,000 each year. Of these the cap of 65,000 is regular and the remaining 20,000 is for an H1-B visa holder with a master’s degree or a higher US university degree. The H1-B visa is valid for three years with an extension of six years.

A statement from international immigration law firm Fragomen on its website says: “The Shergill settlement is good news for some H-4 and L-2 spouses who could see relief from disruptions to their employment due to USCIS processing delays. However, there are some limitations in the new policies. Based on the terms of the settlement, H-4 nonimmigrants who file EAD renewals concurrently with an I-539 extension may receive only a brief auto-extension, just to the end of their current I-94 date. L-2s who do not hold an I-94 specifically noting their spousal status will still need an EAD to work until they are issued a new L-2 spousal I-94.”

“Welcome step by the US Biden Administration to improve access to talent for enterprises, a critical need in the post-Covid economic recovery phase,” said industry body National Association of Software and Services Companies (Nasscom) in a tweet on Friday.