A new lawsuit alleges that U.S. Citizenship and Immigration Services (USCIS) has acted in bad faith against the spouses of H-1B visa holders. The plaintiffs argue H-1B spouses cannot renew their H-4 employment authorization documents (EADs) because USCIS changed procedures to prevent the spouses from working in the United States. The plaintiffs say USCIS added an unnecessary biometrics requirement and adopted an erroneous interpretation of government regulations by prohibiting automatic extensions of H-4 work authorization. Plaintiffs’ attorneys assert Trump administration officials wanted to eliminate the regulation that allows the spouses of many H-1B visa holders to work but after failing to do so instead changed its policies to accomplish the same goal.

Processing Change: In 2015, a regulation granting work authorization to the spouses of H-1B visa holders with approved immigrant petitions (i.e., long-pending employment-based green cards) went into effect. H-1B spouses are usually in H-4 status. A rule is pending with the Office of Management and Budget to rescind the 2015 regulation but it has run into difficulties and has remained on the administration’s agenda for years without being published.

Before March 2019, USCIS would typically adjudicate an H-4 dependent petition and the H-4 EAD (employment authorization document) application at the same time as the H-1B petition from the same family. Premium processing of the H-1B petition would ensure adjudication within 15 days. The wait times for H-4 EADS have grown from 3 months up to 18 months in some locations after USCIS changed its policies, including requiring H-4 spouses to supply biometrics.

A previous lawsuit