A new class action lawsuit in a US court brings hope to the spouses of Indian H-1B visa holders who were hit by the long delays in the processing of H-4 visas and work authorisation.
The lawsuit was filed against the US Department of Homeland Security on March 22. It also includes L-2 visa holders, spouses of L-1 workers.
Indians are the largest H-1B visa holders in the US.
H-4 and L-2 visas
An H-4 visa is issued by the US Citizenship and Immigration Services (USCIS) to the immediate family members (spouse and children under 21 years of age) of H-1B visa holders, most of whom are Indian IT professionals.
An L-2 visa is a visa document used to enter the US by the dependent spouse and unmarried children under 21 years of age of qualified L-1 visa holders. It is a non-immigrant visa, and is only valid for the duration of the spouse's L-1 visa. (L-1 is an intracompany transfer visa.)
Qualified H-4 and L-2 visa holders are eligible to work in the US by getting Employment Authorisation Document (EAD). They work across sectors, including technology and non-IT roles.
Indians account for a significant share of H-4 visas in the US. In FY19, out of the 1.25 lakh of these visas issued, Indians accounted for over 1 lakh. A significant share of their spouses is highly educated and qualified to work.
According to the lawsuit, close to 91,000 such people have lost jobs over the last couple of years, which accelerated amid the pandemic. The lawsuit further added that the US immigration agency “stalled processing visa extension, which, in turn, killed existing and future work authorisation.” The lawsuit was filed by the American Immigration Lawyers Association (AILA) and the US law firm Wasden Banias at the Western District Court of Washington, US.
The delay in biometric processing for the renewal of H4 visas and EAD is forcing many Indians in the US to take legal recourse as they are unable to schedule their biometric appointment even after months of waiting.
Biometric processing for extension of H4 visas was made mandatory in March 2019. Jesse Bless, AILA’s Director of Federal Litigation, said in a statement: “In 2019, the Trump administration implemented a new biometrics requirement for H-4 and L-2 and other dependents, seeking to extend their stay in the US.”
“These new requirements added to the already extraordinary processing delays—delays that COVID-19 restrictions further exacerbated. The process to attain work authorisation should not put families at the risk of immense loss of income and instability,” Bless said.
This has caused unwarranted delays in processing that now stands as high as two years.
In December 2020, a lawsuit was filed against the USCIS. The plaintiff in the case of Deepika Gona. This was not a class action suit. The lawsuit alleged that it has taken two years for the USCIS to issue H-4 EAD.
Gona was working with the Maryland Department of Human Services for IT Infrastructure Transformation.
The lawsuit said that Gona was waiting to get her H-4 EAD renewed for about seven months, and has now been forced out of work. She is not alone though. There are hundreds of them, as high as 91,000, who have lost jobs waiting for their visa to be renewed.
These delays disproportionately affect Indian women, who account for the significant share of the H-4 EAD approved. The last few years have seen many Indians either return to India or move to Canada as the US immigration made it tough for them to continue living in the US.
Many lawsuits were filed last year even as the Biden administration has taken a positive stance on enabling the dependents to work in the US. In January, the Biden administration allowed the spouses of skilled immigrant workers to find employment in the US, contrary to the stand of its predecessor.
This stand has, in no way, expedited the processing of the visa petitions.
Immigration experts pointed out that this is the only way since H-4 visa holders have exhausted conventional relief measures such as getting in touch with the USCIS for updates and the local Congressman’s office for assistance.
Jennifer Minear, President of AILA, pointed out in a statement that the DHS has the legal tools and authority to grant work authorisation to affected individuals whose financial security is hanging in the balance. “DHS can and must revoke the unnecessary biometrics requirements for H-4 and L-2 non-immigrants, and provide automatic work authorization,” he said.
It should also allow EAD applicants to file their renewal applications sooner than 180 days prior to EAD expiry to prevent gaps in work authorization, Minear added.