Employment Authorization Policy Changes Point The Way To The Future

After the Department of Homeland Security’s settlement with the attorneys for the American Immigration Lawyers Association and the plaintiffs in the case of Shergill et al. V. Mayorkas in November of 2021, a new US Customs and Border Protection policy was implemented. It set down the rule that E-1, E-2, E-3, H-4, and L-2 spouses were to receive automatic employment authorizations “incident to their visa status.” In other words, they no longer had to apply for or renew their employment authorization document. Instead, such spouses were being allowed to work automatically, just by virtue of their status as E-1, E-2, E-3, H-4, or L-2 dependents if they had a valid I-94 arrival / departure record with the relevant “S” classification noted on it by a US Customs and Border Protection (USCBP) officer when they entered the US

Follow Up Announcement

As a follow-up to the settlement, the USCIS later added that beginning in April, it would be mailing notices to E and L spouses ages 21 and over who have an unexpired Form I-94 that USCIS issued before Jan. 30, 2022. The individuals involved will be able to use this notice, along with an unexpired Form I-94 reflecting their E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, as evidence of employment authorization. In other words, instead of them applying for employment authorization, it was automatically sent to them. The announcement also advised those E and L spouses who are under 21, or those who have not received a notice by April 30, to email [email protected] to request one. Again, all this was to ensure these spouses were able to work without having to apply for an EAD card.

Over One Year To Get EAD Approvals

More generally, according to an interesting AM22Tech article dealing with Employment Authorization Document (EAD) processing times, no matter which US Citizenship and Immigration Services (USCIS) Center you are filing with, it is going to take over a year to get an approval of a such an application. Indeed, using the USCIS case processing page online, you can check for yourself and establish to your own satisfaction exactly how long your process will take. Even in the rare cases where EADs are approved much sooner, the fact remains that the area of ​​work permit approval in the US immigration system is simply not working as it should.

Approve EADS Along With Underlying Petitions

The question arises why should authorization to work be detached from the underlying immigration application at all? Why can’t employment authorization simply be part of, and incident to, the approval of the underlying case when a beneficiary is coming to the USA? Why, for example, should a fiance have to apply for employment authorization after that fiance has been approved to enter the USA to marry an American? Why isn’t employment granted by the USCBP officer as part of the entry of the fiance into the USA? Why must H-4 spouses have such trouble with their employment status in the US – worrying about Form I-94 renewals and such? Why can’t their employment status automatically follow their spouse’s status? Or take other examples: why can’t an applicant for humanitarian parole, or for Temporary Protected Status (TPS), or DACA status be granted permission to work as part of the approval of that status? Indeed, why shouldn’t an automatic employment authorization be the norm for spouses of all US nonimmigration visa holders who enter the US, with the exception of business and tourist visitors and crew members? If it is a matter of money, why not just add the relevant fee to the fees paid by the principal applicant or the applicants themselves on the underlying petitions?

Why Allow A Needless Exodus Of Talent?

In a recent case involving an Indian spouse of an H visa holder who lost her job due to the expiry of her EAD status, the couple decided to move to Canada instead of fighting with the broken US system dealing with H-4 visa holders and employment . That is not the only one. Why not fix the problem instead of watching these people exit the US and taking their know-how with them elsewhere?

Good Housecleaning Needed

Evidently, besides the Shergill case, there are other cases before the US courts that may help sort out some of these issues. In the end, however, a good house cleaning and review of the whole area of ​​EAD approvals is warranted. Instead of trying to work with a system that is broken, let’s fix this area and help get the immigration process in this area back on track.


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