H4 EAD Delays Prompt Class Action Lawsuit Against USCIS
By: Dayna Lally, Esq.
H-4 and L-2 nonimmigrants, through AILA and a partner law firm, recently brought a class action lawsuit against the Secretary of the Department of Homeland Security.[i]
The H-4 and L-2 nonimmigrant plaintiffs argue that the USCIS has forced tens of thousands of nonimmigrant spouses out of employment due to violations and contradictions of its own regulations at 8 C.F.R. §274a.13(d)(1) in regards to automatic extension of employment authorization.
Pursuant to 8 C.F.R. § 274a.13(d)(1)(i)-(iii):
To receive an automatic extension of work authorization, the renewal application must be:
- Properly filed before the expiration date shown on the face of the EAD;
- Based on the same employment authorization category shown on the face of the expiring EAD; and
- Based on a class of nonimmigrant who continues to be eligible to apply for an EAD, and the applicant remains in an eligible status (“…is based on an employment authorization category that does not require adjudication of an underlying application or petition before adjudication of the renewal application…)[ii]
As mentioned in the lawsuit, “This regulation does NOT limit eligibility for automatic extension by visa category, but rather by qualifying criteria.” (emphasis added).[iii]
Contrary to the plain language of the regulation, the agency’s Handbook prohibits H-4 spouses, who meet the regulatory criteria above, from benefiting from the automatic extension of employment authorization.[iv]
According to Chapter 4.4, only the following EAD categories are currently eligible for a 180-day automatic extension: A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, and A12 or C19.[v] H-4 employment authorization, as classified as “C26″, is not included.
Since the USCIS has unlawfully prohibited and withheld from each H-4 plaintiff a benefit they are entitled to receive, the lawsuit seeks to compel the USCIS to provide H-4 plaintiffs with documentation establishing automatic extension of employment authorization in compliance with 8 C.F.R. 274a.13(d)(1)
“ … the [USCIS] has gone beyond passive interference with H-4 and L-2 spouses ability to maintain employment authorization. Here, the [USCIS] has taken active measures, in violation and contradiction of its own regulations, to prevent plaintiffs from received benefits they are entitled to.”[vi]
Attorney For H4 EAD
Lally Immigration Services, LLC is closely monitoring the H4 EAD delay situation and will provide updates as they become available. If you would like to speak with our attorney for H4 EAD, Dayna Lally, in regards to H4 EAD, H4 EAD renewal delays, H4 EAD processing times, and/or H4 EAD attorney fees, email dayna@lallyimmigration. Consultation fees apply.
Disclaimer: This blog article is provided by Lally Immigration Services, LLC for informational and marketing purposes. This article does not constitute legal advice nor does it establish an attorney-client relationship. No reader should act, or refrain from acting, on the basis of any information presented in this article, or elsewhere on this website, without seeking the advice of appropriate legal counsel, or other professional counsel, licensed in the relevant jurisdiction. Lally Immigration Services, LLC expressly disclaims any and all liability with respect to any actions taken, or not taken, based on any content of this article or website. Prior results do not guarantee a similar outcome.
Last Reviewed/Updated: 09/29/2021
[i] See: AILA Doc. No. 21092800.
[ii] See: to 8 C.F.R. § 274a.13(d)(1)(i)-(iii).
[iii] See: AILA Doc. No. 21092800.
[iv] See: The Handbook, Chapter 4.4
(https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/40-completing-section-2-of-form-i-9/44-automatic-extensions-of-employment-authorizationdocuments-eads-in-certain-circumstances) (accessed September 29, 2021).
[v] Id.
[vi] See: AILA Doc. No. 21092800.
