Legal victory over spousal delays for US visas

American immigration lawyers have welcomed "the historic settlement" with the Department of Homeland Security, which will ease the burden of foreign spouses wanting to join visa-holders in the US.

Image of US flag and employment permit
The American Immigration Lawyers Association (AILA) mounted the legal challenge because of the long delays processing applications for visas of H-4 and L-2 spouses: the latter being visas for partners and children of holders of intra-company transfer visas; the former for those of holders of H-1 visas for graduate-level workers in specialty occupations.
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The litigation successfully achieved the reversal of US Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorisation during the pendency of stand-alone employment authorisation 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 recognises 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 authorisation prior to working in the United States," said the AILA in a statement.Jesse Bless, the Association's Director of Federal Litigation, described the agreement as representing a "historic change" for L-2 spouses who will now enjoy work authorisation 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," she said."It is gratifying that the administration saw that settling the litigation for non-immigrant spouses was something that should be done, and done quickly.”Derek Strain, an immigration specialist at Chicago-based law firm Masuda Funai Eifert & Mitchell, said the spouses had long faced "significant hardships" because of extreme delays in processing times of their employment authorisation documents by the USCIS."Under the terms of the settlement agreement, within 120 days, USCIS will amend the receipt notices issued for EAD extensions to indicate that timely filed H-4 EAD extensions are deemed to automatically extend the EAD for 180 days from the 'card expires' date on the face of the EAD," he said."One limitation on this is that the automatic extension cannot go beyond the expiration date of the individual’s H-4 status. This is a reversal of previous USCIS policy that prohibited H-4 spouses from benefiting from automatic extension provisions which apply to certain other types of EAD applicants."For L-2 spouses, under the terms of the settlement, USCIS will issue additional guidance clarifying that L-2 spouses are authorised to work simply by virtue of their L-2 status (“incident to status”), meaning that these individuals are no longer required to apply for EADs prior to working in the United States."Mr Strain said that additional litigation regarding processing delays over E-2 visas, which allow foreign investors to live in the US with their immediate families to develop a commercial enterprise, was currently pending.

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