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A US district court has ruled that the spouses of H1B visa holders are not entitled to automatic work permit renewals. The ruling relates to H4 visa holders and the renewal of their Employment Authorization Documents (EADs), a program introduced by the Obama administration in 2015.
The EAD program was established to help immigrants from certain countries, including India, mitigate the difficulties they faced in securing a US green card. The EAD scheme enables the spouses of certain categories of H1B visa holder – such as those eligible to obtain a US green card – to work in the US.
According to the most recent official data, up to December 2017, almost 84,360 Indian spouses held an EAD, representing a total of 93% of EADs issued. The number is now estimated to be in the region of 100,000.
Lawsuit
A lawsuit filed by 45 H4 visa holders, mainly Indian spouses, against United States Citizenship and Immigration Services (USCIS), claimed that the government agency had unlawfully withheld an automatic, 180-day extension of their work authorization following the expiration of their EADs.
They also alleged that USCIS had created ‘unreasonable delays in the adjudication of their EAD renewals.
However, Judge Jacqueline S. Corley ruled against the plaintiffs, explaining that the legalities of their claim are not in line with the legalities of the automatic work permit extension.
Judge Corley said: “The regulation text is clear. When an EAD renewal petition relies on the adjudication of another petition, the petitioner does not qualify for an automatic renewal of their work authorization.”
“For H4 visa holders, the EAD renewal petition requires adjudication of two applications prior to the petitioner being eligible to renew their EAD – the spouse’s H1B visa renewal and the H4 renewal. As a result H4 visa holders are not automatically entitled to an EAD renewal.”
Preliminary injunction
The plaintiffs had filed for a preliminary injunction and a plea to expedite discovery. The discovery process is intended to provide the court with sufficient information to expedite the trial process.
However, Judge Corley denied the motion for the injunction and the plea to expedite recovery. However, despite this, it’s understood that an initial hearing has been scheduled for November 19, with USCIS ordered to submit updated appendices on status of the plaintiffs’ work authorization applications.
B1 visa in lieu of H1B visa
News that H4 visa holders are not entitled to an automatic renewal of their work permits comes following Trump administration plans to scrap the B1 in lieu of H1B visa program.
If the regulation is passed it could mark the end of foreign nationals entering the US on a B1 visa to perform short-term H1B or H3 services in prescribed situations while remaining on foreign payroll. Instead, a foreign national would have to qualify independently for a B1 visa for a reason outside the existing B1 in lieu of H1B policy.
The proposed rule change is currently subject to a 60-day public comment period. The reason given for the changes by the Department of State is ‘to remove confusing and outdated language about the scope of permissible activities in the US for people in the country on a B1 visa.’
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