Foreign National Workers Including H-4 Spouses Look for Permanent Relief From USCIS Backlog

Many foreign nationals are currently set to benefit from a temporary extension in employment authorization. However, some call for a more permanent solution, particularly for H-4 dependents. Under the temporary rule, employment authorization documents are automatically extended 540 days past the current expiration date if the foreign national files a timely renewal, but this rule will only apply to certain visa holders and is only in place through October 27, 2023.

Previously United States Citizenship and Immigration Services (USCIS) introduced automatic 180-day extensions for foreign national workers that met certain conditions, including a timely filed application for extension. However, the COVID-19 pandemic led to a significant decrease in the agency’s ability to process petitions, including employment authorization. This has led to an enormous number of cases being backlogged and many workers losing the ability to work and care for their families while in the United States despite the six-month extensions. In many cases, these foreign national workers have been left without approval for more than a year, preventing them from working during the interim and leaving their employers to fill the gap in their workforce.

Though the 540-day extensions offer a short-term solution that will reduce the backlog of cases for the USCIS and allow many workers to resume employment as their cases await a final decision, this is not a long-term solution, particularly for the H-4 dependent spouses who accompany H-1B workers. These spouses are not capable of applying for employment authorization until their spouse has begun the process of obtaining permanent residency. This may leave H-4 spouses waiting several years before the filing stage is even reached and then several more until they can obtain approval.

In recent months, spouses for multiple categories of visa holders have achieved victories in attaining work authorization by becoming work authorized pursuant to their status. This has been extended to spouses of both principal E and L visa holders, removing the need to file a separate application in order to receive employment authorization. Some have suggested extending this same measure to spouses of principal H-1B holders. This would remove these applications from the USCIS’s already backlogged caseload and allow these spouses to help support their families.

Another solution that could benefit H-4 spouses and others is to expand the premium processing program to include more applications and petitions, including dependent applications. Premium processing allows those who are filing an application or petition to pay a higher fee in order for the USCIS to take action on the filed document within a certain time period. Currently, the USCIS plans for this to go into effect for these groups by FY2025. However, due to the difficulty that many foreign national workers and their families have as a result of the backlogs, many argue this should be introduced sooner. Though many proposals have been introduced in Congress to do just this, none currently appear likely to take effect anytime soon.

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