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Business Immigration in a Minute by Honigman LLP

November 15, 2021
  • The most significant development of the last week was that the Department of Homeland Security (“DHS”) entered into a legal settlement that makes beneficial changes to the work authorization rules for H-4 and L-2 nonimmigrant spouses. Under the terms of the settlement, H-4 nonimmigrant spouses will qualify for an automatic extension of their Employment Authorization Document (“EAD”) for up to 180 days while a timely filed EAD renewal application is pending. To qualify for an automatic extension, the H-4 nonimmigrant spouse must have a valid Form I-94 for H-4 status and be applying to renew in the same EAD category. The EAD extension cannot exceed the H-4 validity period. Regarding L-2 nonimmigrant spouses, U.S. Citizenship and Immigration Services (“USCIS”) has issued policy guidance that confirms that L-2 nonimmigrant spouses are employment authorized incident to status. This means that L-2 nonimmigrant spouses will be provided work authorization automatically upon entry in L-2 status and will no longer be required to apply for an EAD. Logically, the USCIS policy guidance also extends this automatic work authorization upon entry without need for an EAD to E nonimmigrant spouses. The E nonimmigrant spouse visa category was not listed in the original settlement agreement because the Plaintiffs in that case were H-4 and L-2 spouses only.  Since 2002 when legislation was passed to provide for employment authorization for E and L-2 spouses, USCIS required by policy memorandum that E and L-2 spouses file for and obtain an EAD before beginning employment. The 2002 policy memorandum is now superseded by the new policy guidance.  However, as noted in the new policy guidance, as a critical part of this change, Customs and Border Protection (“CBP”) must revise the I-94 for E and L-2 nonimmigrant spouses to distinguish the I-94s for spouses from E and L-2 children.  Until such time as the I-94 is changed, E and L-2 spouses must continue to rely upon an EAD as evidence of work authorization for Form I-9 purposes. The settlement agreement provides CBP with up to 120 days to make changes to the I-94 for spouses so that it serves as an acceptable List C document for Form I-9 purposes. L-2 and E nonimmigrant spouses with a timely filed pending EAD renewal application will also qualify for a similar interim automatic 180-day EAD extension to H-4s until their I-94s are changed.

  • The Department of State (“DOS”) announced that visa applicants can now request reconsideration of their visa applications if their cases were rejected solely because of their presence in a country that was previously covered by a COVID-19 geographic-based entry ban. Under the previous entry ban, many foreign nationals were barred entry to the United States if they had been physically present in the previous fourteen days in Brazil, China, India, Iran, Ireland, South Africa, the United Kingdom, or the Schengen Area. Some visa applicants who did not qualify for an exception to these entry bans had their visa applications rejected. Now that these geographic-based entry bans have been rescinded in favor of the new vaccination-based air and land entry policies that took effect on November 8, 2021, DOS announced that eligible applicants can contact the U.S. embassy or consulate where they submitted their visa application to request reconsideration. DOS also indicated that there is limited visa appointment availability for these cases.

  • The Centers for Disease Control and Prevention (“CDC”) has added Covaxin to the list of vaccines that the United States will accept under the vaccination-based air and land entry policies that took effect last week. Covaxin was developed and is widely used in India. Its addition to the CDC’s list of accepted vaccines could make it easier for many travelers from India to meet the vaccination requirement for entering the United States.

  • The Department of Labor (“DOL”) recently updated its processing times for permanent labor certification (“PERM”) applications and prevailing wage requests. As of October 31, 2021, DOL is adjudicating ETA 9089 PERM applications filed in or before June 2021 and processing PERM prevailing wage requests filed in or before February 2021.


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