Visa Crunch

L-2 Indian spouses visa holders file a class-action suit, challenging employment rules and work authorization

A class-action lawsuit has been launched by a group of mostly Indian citizens contesting the US immigration policy that bars L-2 visa holders from working until they obtain a work permit. A group of 15 plaintiffs, 13 of whom are Indian nationals, filed the lawsuit last Thursday in the US District Court for the Western District of Washington. L-2 visa holders, as well as spouses of L-1 visa holders, are permitted to work incident to their status under the law. “This means they should be able to work without having to apply for a second work visa,” said Jonathan Wasden, an immigration attorney at Wasden Banias. As a result, the applicants will be jobless for the next 10-15 months while the immigration department considers their case. The lawsuit also seeks for allowing H4 visa holders and spouses of H-1B visa holders to have their employment authorization documents (EADs) automatically extended provided they match specific criteria outlined in the policy handbook, a process that Wasden claims the agency does not implement.

“L-2 visa holders are entitled to employment ‘incident to status,’” adds Jonathan Wasden, partner at Wasden Banias, who is representing the plaintiffs. In other words, they should be able to work without having to apply for a second work visa. The law and regulations are clear on this subject, yet USCIS requires L-2 visa holders to apply for a work permit, which forces them to wait for 10-15 months without a job while their application is processed.” The L-2visa is issued to dependents such as the spouse of an L-1 visa holder (who is in the US on an intra-company transfer). Dependents, such as the spouse of an H-1B visa holder, are granted H-4 visas.

Wasden goes over another point raised in the lawsuit complaint. “In certain circumstances, the USCIS has a policy that provides for an automatic extension of work visas. Some H-4 and L-2 extensions, but not all, meet this requirement. However, awaiting adjudication, USCIS bans all H-4 and L-2 visa holders from receiving an automatic extension (again, by policy). H-4 and L-2 status extensions are limited to the term of the primary beneficiary’s allowed stay. If her (or his) spouse’s extension of stay has been authorized by USCIS, an L-2 or H-4 visa holder can extend her (or his) status by filing Form 1-539 with USCIS. She/he can also leave the United States and apply for a visa at a consulate.

Some H-4 and L-2 candidates for an employment authorization document (EAD) already have authorized status and do not need to file Form I-539 to prolong their status. They simply need their EAD to be approved so that they can work. Instead of waiting over a year for USCIS to complete her Form 1-539, one of the plaintiffs chose to leave the country and acquire a visa stamped elsewhere. Her H-4 visa was valid until January 3, 2024, and it was approved on April 11, 2021. Her EAD was up for renewal on September 1, 2021. She applied for an extension of the EAD on Form I-765 before it expired.

“She is compelled to abandon her job and endure a gap in employment because the agency (USCIS) unjustly withholds automatic extension of employment authorization. She will be out of work until March 2022 at the earliest if this court does not issue an order,” the legal complaint alleges.

Plaintiffs who are enduring financial difficulty have also requested a preliminary injunction from the court. “This court has the authority to compel the agency to stop plaintiffs’ suffering and ensure that the law is followed,” they argue.

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