‘H-1B spouses not entitled to automatic renewal of work permits’

US visa

California judge declines to order USCIS to extend expired EADs.

Holding that spousal visa holders’ were not entitled to automatic renewal of work permits, a California judge has refused to order US Citizenship and Immigration Services to extend their expired employment authorization documents.

US Magistrate Judge Jacqueline Scott Corley denied 33 H-4 visa holders’ bid for a preliminary injunction Tuesday holding they were unlikely to show that USCIS owed them automatically refreshing work permits because their work permits rely on both their immigration status and their H-1B spouses’ visas, Law 360 reported.

“The regulation’s text is clear: when an [employment authorization document] renewal petition relies on the adjudication of another petition, the petitioner is not eligible for automatic renewal of the work authorization,” she ruled

H-4 visa holders are the spouses of foreigners who enter the US on H-1B specialty occupation visas. Consequently, the life of an H-1B visa will determine the length of the H-4 visa. H-4 visa holders are eligible for EADs.

According to official data, up to Dec.2017, about 84,360 Indian spouses held EADs making up 93% of the total. The number of such Indian spouses is now estimated to be over 100,000.

“For H-4 visa holders, the EAD renewal petition requires adjudication of two applications before the petitioner is eligible for renewal of the EAD,” Corley said. “Thus, H-4 visa holders are not entitled to automatic renewal of their EAD.”

USCIS was “unambiguous” about where it stood on the issue. The agency had twice refused recommendations to automatically renew H-4 visa holders’ work permits, she noted.

The ruling comes as an early blow for a group of H-4 visa holders, who sued USCIS over delays in their work permit renewal requests, Law360 observed.

The agency took seven months to adjudicate 11 of the plaintiffs’ applications, while 31 plaintiffs have had an open application for at least four months, according to the opinion.

In addition to arguments that their work permits should automatically refresh, the visa holders pressed Corley to order USCIS to finish their applications within a week.

For that alternative injunction request, the petitioners argued their current delays were unreasonable. They said the slowdowns went back to two “bad faith” changes USCIS set on H-4 work permit extension processing in 2019.

These were the agency’s decision to handle H-1B and H-4 visa extension requests sequentially, instead of simultaneously, and the agency’s requirement that applicants include some biometric information with their work permit renewal applications.

But Corley said there wasn’t evidence showing those changes were enacted to frustrate H-4 visa holders.

Several USCIS declarations “make clear” the agency was looking to incorporate the biometric data requirements across other immigration applications, she pointed out.

She acknowledged that the visa holders and their families faced “severe” hardships by the delays, but they haven’t shown the delays were unreasonable, the judge said.

READ MORE:

Trump H-1B ban cost America $100 billion: Brookings (October 22, 2020)

State Department proposes elimination of B-1 in lieu of H-1B visa (October 21, 2020)

17 US institutions challenge H-1B visa wage hike (October 20,2020)

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