By Cyrus Mehta and Isabel Rajabzadeh*
Although H-Four and L-2 extensions proceed to be delayed since our final weblog “Coping with Delays Facing H-4 and L-2 Spouses”, we spotlight one other challenge, which adds additional hardship for H-Four and L-2 spouses confronted with unjust processing delays. In October 2020, the EB-3 Dates for Filing within the Visa Bulletin higher level considerably, which allowed many born in India to file Form I-485, Adjustment of Status (AOS) functions. The surge in AOS instances, coupled with the H-4/L-2 processing delays, have left many with the shortcoming to journey overseas as they await each their H-4/L-2 extension and Advance Parole (AP) processing. This weblog tackles the menace to abandonment of AOS when touring internationally whereas AP and H-4/L-2 are processing. We additionally focus on the complicated interaction with employment authorization for H-4/L-2 spouses who’ve pending AOS functions.
Preserving H-Four and L-2 Status When an AOS is Pending
Since the H-1B and L visas permit for twin intent, it’s attainable to take care of H or L nonimmigrant standing whereas an AOS utility for everlasting residence has been filed.
Due to the delays within the processing of H-4/L-2 extensions and requests for EAD, travelling overseas poses a conundrum. In order to protect the AOS that’s nonetheless processing, one must have both AP or legitimate H-4/L-2 standing earlier than leaving. Accordingly, eight CFR 245.2(a)(4)(ii)(B)-(C) outlines two distinct pathways. Under (B), it permits these with authorized AP to go away the nation after which subsequently return in AP with out abandoning their AOS, absent any particular conditions outlined within the regulation. Under (C), the identical is true for individuals who go away in H-4/L-2 standing and return in H-4/L-2.
In 2000, the Cronin Memo was revealed and clarified that though an H-1B or L is taken into account to be paroled after coming into the United States by way of AP, he/she continues to be in a position to apply for an extension of H-1B or L if there was a legitimate and authorized petition. Upon the granting of the H-1B or L extension, the grant of parole could be terminated, and the H-1B applicant would then be admitted into the applicable H-1B standing. Although the Cronin Memo contemplates one who’s already in H-1B and L standing earlier than touring overseas and being paroled by way of AP, it might additionally apply to 1 who has a pending extension of H-1B or L-1 standing utility and who traveled overseas under AP and was paroled into the US. Likewise, upon the approval of the H-1B or L-1 request, the parole could be terminated, and the beneficiary could be admitted in H-1B or L standing. This permits the H-1B beneficiary to journey overseas whereas concurrently preserving the AOS when each the H-1B and AOS are pending.
There is an inherent vagueness as as to whether the Cronin memo applies to derivatives since H-4s and L-2s should not talked about within the memo in respect to this challenge. One could nevertheless argue, via anecdotal experience, that the Cronin Memo ought to apply to H-4s and L-2s and subsequently, the H-4/L-2 ought to be capable of enter the United States in AP and be capable of switch to H-4/L-2 standing as soon as the H-4/L-2 extension is authorized.
Preserving Adjustment of Status When Advanced Parole and H-Four are Pending
What occurs when an H-Four has a pending AOS and has not acquired AP or H-Four approval however needs to journey based mostly on an emergency? This challenge is two-fold and is particularly relevant to these whose prior H-4/L-2 statuses have expired and have well timed filed their extensions however nonetheless await processing. As talked about earlier than in our prior blog, though the H-Four can get a visa stamp at a US consulate, the AOS could also be deemed deserted if the H-Four left the US with out H-Four standing or AP.
In this situation, the one recourse for the H-Four is to use for an emergency AP by calling the USCIS 800 number to schedule an appointment with the native USCIS workplace, nevertheless, it isn’t particular that one will be capable of connect with a live-person, not to mention persuade the USCIS that the emergency qualifies for expeditious AP processing.
Does an L-2 Spouse Need an EAD?
Out of the numerous downfalls of the H-4/L-2 processing delays, probably the most important is the Employment Authorization Document (EAD) processing gaps afflicting households across the nation. At giant, this challenge has subjected many spouses and their households to monetary wrestle, and it stays a number one challenge that the USCIS and the Biden administration should instantly resolve. The hardship is compounded by the truth that there are delays within the processing of the EAD under each the AOS and the H-4/L-2. Nonetheless, there could also be an debatable authorized foundation for an L-2 partner to interact in employment with out acquiring an EAD.
In the Matter of Do Kyung Lee, the Board of Immigration Appeals (BIA) held that employment authorization is incident to E-2 standing. INA 214(e)(6) explicitly states that an E-2 partner shall be approved to interact in employment. In this unpublished determination, the BIA reasoned that the regulation at eight CFR 274a.12(c)(2) solely specified that the dependent partner and youngster of an E-1 visa holder should apply for work authorization, however the identical regulation didn’t particularly state that the partner of an E-2 should do the identical. The Court held that since INA 214(e)(6) particularly approved the E-2 partner to interact in employment, the E-2 partner’s failure to use for an EAD didn’t end in a violation of standing. Based on the reasoning of this BIA determination, the identical logic could be utilized to L-2 spouses since INA 214(c)(2)(E) explicitly authorizes L-2 spouses to interact in employment. The rules at eight CFR 274a.12 shouldn’t have a particular class for L-2 spouses, and USCIS requires L-2 spouses to make use of the catchall reserved provision under eight CFR 274a.12(a)(18).
Nevertheless, that is nonetheless a grey space and E-2 and L-2 spouses are subsequently nonetheless beneficial to use for an EAD. Even if the reasoning of this unpublished BIA determination is accepted by the USCIS, a scarcity of EAD might doubtlessly set off I-9 noncompliance points with respect to the employer as ICE could not acknowledge the holding of an unpublished BIA determination.
The reasoning of this BIA determination is just not appliable to H-Four spouses as there is no such thing as a express INA provision that particularly authorizes H-Four spouses to interact in employment. The Department of Homeland Security (DHS) under the Obama administration particularly created a regulation which authorizes EAD for an H-4 under eight CFR 274a.12(c)(26), based mostly on implied authority within the INA to challenge work authorization to any class of noncitizens. The Trump administration tried to unsuccessfully rescind the rule because it was hostile in direction of H-Four EADs, however couldn’t get it previous the Office of Management and Budget. The Trump administration then imposed the biometric requirement for each I-539 extension, which in flip delayed the grant of the H-Four EAD. The pandemic that adopted in March 2020 prompted additional delays and backlogs.
We reiterate our request that the Biden administration take away the biometric requirement imposed by the prior Trump administration when an I-539 utility is filed. The justification by the Trump administration, as revealed in a current WSJ article, that the biometric requirement was crucial in order that dependents didn’t misrepresent themselves is spurious. Until 2019, there was by no means a biometric requirement when dependents filed I-539s, and there have been no widespread incidents of such misrepresentations. Many of those dependents had been already vetted once they obtained H-Four and L-2 visa stamps at US consulates. Moreover, subjecting infants and toddlers in search of H-Four and L-2 extensions to that is downright merciless. Eliminating this pointless biometric requirement will go a great distance in eliminating the delays dealing with H-2 and L-2 spouses as they’ll then be processed under the premium processing request filed via the principal partner’s H-1B or L-1 petition. The DHS also needs to provoke premium processing for EAD requests since Congress authorized extra premium processing final yr. Finally, since INA 214(c)(2)(E) explicitly authorizes an L-2 partner to interact in employment, what’s the have to require the L-2 partner to undergo the prolonged means of applying for an EAD? Under the logic of the BIA determination in Do Kyung Lee, an E-2 or L-2 partner who engages in employment with out an EAD is not going to be saw as participating in unauthorized employment. Therefore, even when the Biden administration can’t velocity up EAD processing rapidly, it will probably formally pronounce that L-2 and E-2 spouses needn’t receive an EAD.
(This weblog is for informational functions and shouldn’t be saw as an alternative to authorized recommendation).
* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to observe regulation in New York.