US allows automatic job authorisation for spouses of H-1B visa holders: What the policy change means for Indians

A large percentage of H-1B visa holders in the country are Indian IT professionals working for US companies. (File/PTI)

The United States will offer automatic work authorisation permits to spouses of H-1B visa holders — a move that would benefit thousands of Indian professionals working in the country.

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The move stems from a class-action lawsuit filed by the American Immigration Lawyers’ Association for immigrant spouses, many of whom lost their jobs due to long delays in processing work authorisation applications.

A US court directed the US Citizenship and Immigration Services to allow automatic extension of up to 180 days on work authorisation for spouses of H-1B and L-1 visa holders. While spouses of L-1 visa holders will get the extension without applying, H-4 visa holders will need to apply for an extension once their employment permit expires.

H-4 and L2 visas: The difference
The US’ latest immigrant-friendly amendment would benefit the spouses of L-1 or H-1B visa holders as their work authorisation will now be auto extended for 180 days.

The US Citizenship and Immigration Services issues H-4 visas to the immediate family members (children under 21 and spouses) of H-1B visa holders. According to data from the US government, women constitute over 94% of H-4 visas. Of these, nearly 93% are from India.

L-1 visas are non-immigrant visas with a relatively short validity period. This visa allows multinationals to temporarily shift foreign employees to their offices in the US for specialised positions. L-2 visas are issued to an L-1 visa holder’s dependent spouse or unmarried children under the age of 21 to enter the US. L-2 visa holders can also acquire Employment Authorisation Documents to seek employment in the country.

What the new policy means for H-4 and L-2 visa holders
The US Citizenship and Immigration Services will now grant auto extension of up to 180 days on work authorisation for spouses of H-1B and L-1 visa holders. But while L-2 visa holders will get an automatic extension, H-4 visa holders will have to apply.

Jon Wasden, one of the American Immigration Lawyers’ Association’s litigation partners, told The Indian Express that the US Citizenship and Immigration Services failed to grant employment authorisation to L-2 visa holders despite the plain statutory language.

The other issue related to the work permit of H-4 visa holders that expired before their H-4 status.

This group always met the regulatory test for automatic Employment Authorisation Documents extension, but the agency forced them to go through a reauthorisation process, Wasden said.

The new US Citizenship and Immigration Services policy is likely to remove some bottlenecks that forced many L-1 and H1-B spouses out of their jobs. A large percentage of H-1B visa holders in the country are Indian IT professionals working for US companies.

The Obama administration had previously given work authorisation to some H-4 categories. US government data showed that work authorisation had been issued to over 90,000 H-4 visa holders.

Why the policy change
The move stems from the American Immigration Lawyers’ Association’s settlement with the US Department of Homeland Security in the Shergill, et al. v. Mayorkas case. The cases for H-4 and L-2 plaintiffs who sought extensions or reauthorisation of employment.

Shergill was an extension of a pending lawsuit, filed in March, that sought lawful status and work authorisation.

In the current Shergill case, the American Immigration Lawyers’ Association argued that processing delays for work authorisation led to H-1B and L-1 dependents being forced out of their jobs.

An Indian named Divya Jayaraj, a plaintiff in the case, reportedly came to the US to study before returning later as the spouse of an H-1B holder. After her spouse’s extension in August 2020, she applied to extend her H-4 status. Jayaraj, however, lost her employment “because of agency inaction”.

Wasden told PTI the H-4 visa holders always met the regulatory test for automatic extension of employment authorisation documents. However, the agency forced them to wait for reauthorisation. People were losing high-paying jobs for no reason, harming them and US businesses.

The settlement reverses the agency’s earlier policy that prohibited H-4 holders from getting automatic employment authorisation extensions while their applications were pending. It will also allow L-2 holders get automatic work permits based on their status — meaning the spouses of managers and executives will no longer need to apply for employment authorisation documents before working in the country.