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A 16-strong group of L1 visa and H1B visa holders, most of whom are Indian, have filed a class action lawsuit against United States Citizenship and Immigration Services (USCIS). The lawsuit has been filed challenging a requirement for work authorization for the spouses of L1 visa holders who are issued with L2 visas and H1B visa holders who are issued with H4 visas.
The 16 plaintiffs claim that USCIS has violated the law, leaving many people in a precarious position and facing unemployment. The lawsuit, filed with the Western District Court of Washington, states: “USCIS has stripped L2 visa holders of a statutory right to work in the US and revoked their right to automatically extend their employment authorization.”
According to the lawsuit, USCIS is ‘taking away highly educated and skilled workers from their employers at a time when America is in the grip of a labour shortage’.
No separate work permit application
The lawyer representing the plaintiffs, Johnathan Wasden, said: “L2 visa holders qualify for employment ‘incident to status’. In other words, they should be eligible to work without a separate work permit application.”
“The statute and regulations are clear on this point. However, USCIS makes L2 visa holders apply for a work permit, making them wait without a job for 10 – 15 months, until the application is reviewed,” Wasden added.
According to Wasden, the USCIS does have a regulation that allows for the automatic extension of work permits under certain circumstances. However, not all H4 and L2 visa extensions meet the criteria.
It’s understood that USCIS, through policy, prohibits all H4 and L2 visa holders from getting an automatic extension, pending adjudication.
Under current US immigration laws, the extension of H4 and L2 status cannot exceed the length of the primary beneficiary’s approved stay in the US.
Form I-539
The spouses of L1 visa and H1B visa holders who hold an L2 visa or H4 visa which has been approved by USCIS can extend their stay in the US by filing Form I-539 with USCIS. They can also leave the US and apply for the necessary visa at any US consulate.
However, H4 and L2 visa applicants for an Employment Authorization Document (EAD) already have approved status and are not required to file a Form I-539 to extend their status. All that’s required is for an EAD to be adjudicated to enable them to work.
It’s understood that one of the plaintiffs has already decided to leave the US in order to get their visa stamped overseas, rather than waiting for a year for USCIS to process a Form I-539.
Wasden said: “This unfortunate scenario is very common when visa and work permit expiry dates don’t align, meaning that a work permit expires prior to a visa.”
Financial hardship
Among the plaintiffs, several are facing financial hardship, leading them to ask the court for a preliminary injunction.
The lawsuit states: “The court has the power to force USCIS to end the suffering of the plaintiffs and ensure that the law is complied with.”
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