USCIS processing times continue to increase for the majority of applications and have only been made worst by the ongoing pandemic, resulting in the agency being heavily understaffed. This is especially true for H-4 and L-2 EAD applicants. Because of the long processing times and the fact that these categories of work authorization are not eligible for an automatic extension, tens of thousands of applicants have been forced to take a break from employment and in some cases have lost jobs altogether.

Most would assume that the regulations specifically exclude H-4 and L-2 EADs from qualifying for the 180-day automatic extension.

This is in fact not the case as the regulations do not limit eligibility for the automatic extension based on the category of visa. The following criteria are used to determine whether an applicant qualifies for a 180-day automatic extension:

The renewal application must be properly filed before the expiration date shown on the face of the EAD;
The renewal application must be based on the same employment authorization category as per the current EAD;
The renewal application must be based on a class of aliens who continue to be eligible to apply for an EAD notwithstanding the expiration of the EAD; and is based on a category that does not require adjudication of an underlying application or petition before adjudication of the renewal application.

Based on the above there is no justification for not allowing H-4 and L-2 EAD applicants to qualify for the aforementioned extension. This is another classic example of the agency interpreting its regulation to suit its own needs and to the detriment of the applicant.

For this reason, AILA and Partners have filed a lawsuit claiming, that the prohibition on qualifying H-4 and L-2 applicants benefiting from the 180-day extension, is unlawful. The lawsuit also alleges that L-2 applicants should be authorized to work once their L-2 status is approved, without having to file an I-765 application for work authorization.

It will be interesting to see how this lawsuit plays out. If successful, this will be another landmark decision that will change the face of immigration once again and will provide much-needed relief for those experiencing extreme processing delays, resulting in gaps in their employment and in some cases the complete loss of employment.

For any immigration-related queries please contact PLG partner, Chris Prescott at cprescott@patellegal.com.