USCIS Cuts Deal to Make Unlawful Work Permits for H-1B Spouses Renew Automatically

Biden administration settles lawsuit at behest of AILA and Big Tech

By Robert Law on November 11, 2021

The Biden administration continues to take actions in the immigration space that reward its biggest donors — attorneys and Big Tech — and make it harder for American workers to obtain decent jobs or wages. The latest example is Wednesday’s settlement of a lawsuit brought by the American Immigration Lawyers Association (AILA) on behalf of the alien spouses of H-1B and L-1 nonimmigrants. Under the settlement, the former (H-4) will be allowed to continue to work while their employment authorization document (EAD) renewal application is pending and the latter (L-2) will be deemed work authorized “incident to status”.

The favorable outcomes for the H-4 and L-2 spouses are notable for different reasons. By law, H-4 nonimmigrants are not allowed to work. This treatment in the Immigration and Nationality Act (INA) differs from that of the L-2 and E-2 spouses, which Congress affirmatively made eligible to work. Congress could have made H-4s work-authorized at the same time (or subsequently), but has declined to do so.

In a move to appease the tech industry, the Obama administration bypassed Congress and made certain H-4s work authorized through regulation. Specifically, an H-4 spouse, typically an Indian woman, can obtain an EAD if the H-1B spouse has an approved Form I-140, Immigrant Petition for Alien Workers or has had the H-1B extended under certain provisions in the American Competitiveness for the 21st Century Act (AC21). As I’ve previously written, AC21 created an enormous loophole that ensures Big Tech has a sustained pipeline of cheap foreign workers. The indefinite ability of H-1Bs to remain in the United States beyond six years fueled the special interest demand for their H-4 spouses to gain work authorization before they become lawful permanent residents.

Unlike the H-1B, which nominally has certain wage and labor protections, the H-4 EAD is an “open market” EAD, meaning the alien can take any job, at any pay rate, and there are no labor protections for either the alien or American workers.

Lawsuits by American tech workers harmed by this blatantly illegal regulation have lingered in the courts for many years. The Trump administration said it was going to rescind the unlawful rule but failed to do so.

At least 90,000 H-4s have obtained these work permits since the Obama administration concocted them during its second term. Processing times for renewals significantly increased after USCIS was forced to temporarily shut down many operations in the initial response to Covid-19. As a result, some work permits expired before USCIS approved the renewal EAD, prompting this litigation.

Now, DHS is unilaterally changing the terms again and decreeing, through this settlement, that a timely filed EAD renewal results in an automatic extension of the current EAD for 180 days. The effort is an obvious move to prevent lapses in “employment authorization” but this is accomplished by disregarding the regulation that already disregarded the law. So why stop there? How else will the Biden administration unilaterally amend the H-4 EAD program to make it more favorable to aliens?

The L-2 issue is different because, as noted above, Congress actually granted the alien spouses of L-1 nonimmigrants the ability to work. Since then, DHS has treated such work authorization as a discretionary grant, meaning that the alien needed to file a Form I-765, Application for Employment Authorization in order to have lawful permission to work. Plaintiffs argued that their work authorization should be “incident to status” instead, meaning automatically eligible upon obtaining the L-2 nonimmigrant status.

Certainly, a persuasive argument can be made that Congress intended L-2s to be work authorized incident to status. The reason this shift is noteworthy now is that the interpretation change means L-2s will no longer have to pay the $410 fee for the Form I-765, Application for Employment Authorization. USCIS is a fee-funded agency that is losing millions of dollars a day because it has not charged fees sufficient to recapture the cost of adjudication. As director, you would think Ur Jaddou has a fiduciary duty to ensure that USCIS maximizes its fee collections. Instead, this is just the latest example of the Biden administration subsidizing immigration benefits to favored populations. Eventually someone is going to be stuck footing the bill.