USCIS 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.

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The Aftermath of the H-1B Fiscal Year (FY) 2020 Visa lottery: Next Steps and Alternatives

US Citizenship & Immigration Services (USCIS) have announced the lottery results for this year’s H-1B cap (Fiscal Year 2020) with USCIS reporting that it received 201,011 H-1B petitions. Additionally, the agency announced last week that they completed data entry for all FY 2020 H-1B cap-subject petitions selected (including master’s cap cases), which means they will be sending receipt notices for those cases selected and returning those cases not selected.

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USCIS to Begin Using More Secure Mail Delivery Service

In a welcome move, US Citizenship and Immigration Services (USCIS) announced last week that beginning April 30, 2018, the agency will begin phasing in the use of the US Postal Service’s (USPS) Signature Confirmation Restricted Delivery service in order to mail Green Cards and other secure documents to recipients. The first phase will involve re-mailing documents—including Permanent Resident Cards (i.e., Green Cards), Employment Authorization Cards (EAD cards), and Travel Booklets—that have been returned as non-deliverable. USCIS states that applicants who have changed mailing addresses during the application process are more likely to have their secure documents sent with this new delivery service. USCIS plans to expand this signature confirmation mailing service to all secure documents in the future.

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USCIS Is Reissuing Receipt Notices to Certain EAD Renewal Applicants

Beginning February 16, 2017, US Citizenship & Immigration Services (USCIS) began reissuing receipt notices (Form I-797) to individuals who applied to renew their Employment Authorization Document (EAD) between July 21, 2016 and January 16, 2017, and whose applications remain pending in the following categories: 

  • (a)(3) Refugee;
  • (a)(5) Asylee;
  • (a)(7) N-8 or N-9;
  • (a)(8) Citizen of Micronesia, Marshall Islands, or Palau;
  • (a)(10) Withholding of deportation or removal granted;
  • (c)(8) Asylum application pending;
  • (c)(9) Pending adjustment of status under section 245 of the Immigration and Nationality Act;
  • (c)(10) Suspension of deportation applicants (filed before April 1, 1997), cancellation of removal applicants, and special rule cancellation of removal applicants under NACARA;
  • (c)(16) Creation of record (adjustment based on continuous residence since January 1, 1972);
  • (c)(20) Section 210 Legalization (pending Form I-700);
  • (c)(22) Section 245A Legalization (pending Form I-687);
  • (c)(24) LIFE Legalization; and
  • (c)(31) VAWA self-petitioners;

The reissuing of these receipts was necessitated by the change in USCIS regulations on January 17, 2017, when USCIS started automatically extending certain expiring EADs for up to 180 days while renewal applications were pending. The automatic extensions  apply only to certain applicants who properly filed for a renewal EAD before their current EAD expired, whose EAD renewal is under a category that is eligible for an automatic 180-day extension, and when the category on the applicant’s current EAD matches the “Class Requested” listed on the Notice of Action. 

USCIS is reissuing the receipt notices since some of the notices sent out before that date did not contain the applicant’s EAD eligibility category and in order to ensure EAD applicants have proof of their status for I-9 purposes. The reissued receipt notices will contain: 

  • The applicant’s EAD eligibility category;
  • The receipt date, which is the date USCIS received the EAD renewal application and which employers must use to determine whether the automatic EAD extension applies;
  • The notice date, which is the date USCIS reissued the receipt notice; and
  • New information about the 180-day EAD extension.  

To satisfy requirements for Form I-9, Employment Eligibility Verification, EAD applicants may present the reissued receipt notice with their expired EAD to their employer as a List A document.

Additionally, it should be noted that applicants with an EAD based on Temporary Protected Status (TPS) who filed their EAD renewal applications before January 17, 2017, already received a six-month extension through the Federal Register notice that extended their country’s TPS designation. These applicants therefore will not receive a reissued receipt notice. All renewal applicants who filed Form I-765 applications on or after January 17, 2017, including TPS renewal applicants, will receive Form I-797 receipt notices that contain eligibility category information and information about the 180-day EAD extension.

All About Dependents

Dependents come in all shapes and sizes including spouses, children, and step-children but the word itself, “dependent"—what a label! So many negative connotations! Add the word “alien” and a spouse arriving in the US with their husband or wife may feel rightfully disheartened. Of course, calling a young child who is completely reliant on their parent a dependent makes more sense, yet treating both the same under immigration law does not make the most sense. Nonetheless, in this post we’ll examine key issues relating to both spouse and child dependents.

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OPINION: Visa Bulletin Debacle

Those of us practicing immigration law in the summer of 2007 experienced something that we thought would never happen again. The US State Department (DOS) released a Visa Bulletin that reported every employment-based preference category as “current.” This meant that everyone with an approved labor certification, no matter the prior backlog of priority dates, could file their adjustment of status (i.e. “Green Card”) applications with US Citizenship & Immigration Services (USCIS). Clients and attorneys cheered for joy and started preparing the paperwork. Clients who were abroad when the announcement was made flew back to the US (since an applicant has to be physically present in the US when applying for the adjustment). Clients got medical exams, paid for translations, paid attorneys, and everyone worked overtime to put together these numerous and extensive applications. And then…the State Department took the Visa Bulletin back! 

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AILA: Delays in Production of Work Authorization and Green Cards

The American Immigration Lawyers Association (AILA) is reporting that there are delays in the issuance of employment authorization and permanent resident cards (aka Green Cards) after approvals of I-765 and I-485 applications. US Citizenship & Immigration Services (USCIS) has confirmed through AILA that because the card production facility in Corbin, KY is undergoing maintenance, all card production work has been transferred to the facility in Lee's Summit, MO, resulting in a production backlog. Recipients may therefore not receive their cards until two to three weeks after application approval. USCIS anticipates that the backlog will be resolved in September 2015.

URGENT: Some DACA Recipients Who Received Three-Year Work Permits Must Return Them Immediately

US Citizenship & Immigration Services (USCIS) has urgent news for some recipients of Deferred Action for Childhood Arrivals (DACA). A February 16, 2015 court order in Texas v. United States specified that USCIS should continue to approve DACA deferred action requests and related employment authorization documents (EAD) for two-year periods, notwithstanding President Obama’s executive actions of November 20. After Obama’s announcement, USCIS had been issuing certain DACA renewals and EAD cards for the three years specified under the Obama executive action.

Certain 3-year EAD cards mistakenly issued must be returned to USCIS

After the February 16, 2015, court injunction was in place, USCIS mistakenly issued approximately 2,100 EAD cards for a three-year period rather than the allowed two-year period. USCIS has therefore updated their records to reflect a two-year period of deferred action and employment authorization for these affected individuals and has re-issued and mailed out the corrected two-year EADs. USCIS has also notified these individuals that the three-year EADs are no longer valid and must be immediately returned, along with any related approval notices, to their local USCIS office. USCIS is tracking the number of returns of these invalid EADs and continues to take aggressive steps to collect the remaining cards.

Who can keep their 3-year EAD work cards? 

USCIS has a helpful guide for DACA recipients.

After President Obama’s executive actions regarding immigration reform on November 20 last year, USCIS began to issue three-year EAD cards. The approximately 108,000 three-year EAD cards that were approved and mailed by USCIS after November 20 and received by DACA recipients before the February 16, 2015, injunction date (and that have never been returned or reissued by USCIS) do not need to be returned to USCIS.

Resources to determine if EAD card should be returned

Individuals who are required to return three-year EADs and have not done so will be contacted by USCIS by phone or in-person. USCIS reports that they also may visit the homes of those individuals who have not yet returned their invalid three-year EAD or responded to USCIS's request that they return the cards. USCIS will reportedly attempt to call the individual in advance of any home visit and USCIS employees will always show the individuals their credentials during any visits.

New resources are available at USCIS.GOV to help DACA recipients:

Those recipients who have not been contacted by USCIS and have received a three-year card after February 16, 2015, should use the new online tool or call the USCIS Customer Service line at 1-800-375-5283 to verify whether they are affected before returning the card.

What are the consequences of not returning card?

For those recipients who are required to and fail to return the card, USCIS will terminate DACA and all employment authorizations effective July 31, 2015. Since the consequences of not returning the card is severe, DACA recipients should note carefully if they are required to return their card and speak to an experienced immigration attorney if they have questions.