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Paperwork Delays Become Job Market Barriers for Foreign Spouses

Oct. 28, 2021, 9:24 AM

Neha Pathak has been stuck at home for the past month after her work authorization expired at the end of September. Originally from India, she applied to renew her employment eligibility in May but almost seven months later is still waiting with no end in sight.

Pathak is among potentially thousands of spouses of high-skilled non-immigrant visa holders facing delays or disruptions in employment because required documentation hasn’t materialized. As a salesperson for package delivery giant DHL, she covered a territory that includes parts of Maryland, Virginia, and the District of Columbia.

Now Pathak can’t even drive legally while her paperwork is held up.

“I’m trying to stay positive until the time comes that I can restart or rejoin the workforce,” she said. “I’m really eager to go back to my work.”

Attorneys and business groups say ballooning wait times for work authorization documents haven’t just disrupted the careers and finances of workers like Pathak. They’ve also hurt the ability of U.S. firms to attract and retain highly skilled and educated workers in industries like engineering, computer science, and health care.

Multiple class actions have been filed to force action by U.S. Citizenship and Immigration Services, the Department of Homeland Security agency responsible for administering visa programs. Lobbying groups are pressing the agency to offer blanket extensions of worker eligibility.

“Spouses are not going to agree to work in the U.S. because work authorization is so incredibly unpredictable,” said Jonathan Wasden, an immigration attorney at Wasden Banias LLC in Charleston, S.C.

Sudden Backlogs

President Barack Obama’s administration in 2015 issued a rule allowing spouses of H-1B visa holders to get work permits when they received their visas. Between 2015 and 2018, more than 90,000 applicants had work eligibility approved through the H-4 visa program.

While the administration of President Donald Trump made only an aborted attempt to repeal the work authorization rule, the federal government added more stringent biometric requirements such as finger printing for applicants and stopped concurrently processing spouses’ visa applications, attorneys say, throwing up new barriers for applicants who remained eligible.

The Covid-19 pandemic, meanwhile, forced USCIS offices to shut down in-person services for months last year, exacerbating the paperwork processing lag.

Those developments added up to protracted delays for seekers of H-4 and L-2 visas, which are used by spouses of managers or executives who transfer from within a company to an office in the U.S. Visa holders can’t renew their work authorization documents until 180 days before their existing eligibility expires, but wait times of more than half a year have become common, forcing workers to leave jobs with no clear endpoint for a return.

USCIS temporarily dropped biometric requirements following a class action brought by the American Immigration Lawyers Association in March on behalf of applicants for H-4 and L-2 visas. Wasden and Kripa Upadhyay of Orbit Law, PLLC also represented the plaintiffs in that case.

But immigration advocates say that change has meant little for existing backlogs and the federal government isn’t using other options to keep workers in the labor force. A second class action filed in September argued that USCIS should grant automatic extensions of work eligibility for applicants already approved to work in the U.S.

A USCIS spokesman said the agency doesn’t comment on pending litigation.

The paperwork delays have become a “black eye” for the Biden administration, said Jesse Bless, director of federal litigation at the American Immigration Lawyers Association.

“We are in a labor shortage in this country,” he said. “And in this environment we have people being forced from their jobs.”

Business Impact

These long waits for work authorization approvals puts U.S. firms at a disadvantage competing for and retaining international talent, said Jon Baselice, vice president of immigration policy at the U.S. Chamber of Commerce.

“As you’re dealing with an increasingly competitive global marketplace, it just does not help to have these types of problems,” he said. “We’re talking about people who have already been cleared by the federal government time and time again.”

The Chamber signed on to an amicus brief along with several U.S. corporations and advocacy groups in the March class action calling for USCIS to reduce wait times for work authorization.

“The overall situation just has a chilling effect on people coming to the United States,” said Linda Moore, president and chief executive officer of TechNet, a D.C.-based trade group representing technology companies. “Once you start telling them you’re not welcome here, they go somewhere else.”

Two-thirds of H-4 visa holders with work authorization are employed in science, technology, engineering, or math fields, according to a 2019 study of the program. The vast majority are also female, meaning the impact of delays disproportionately falls on women.

USCIS Actions

A spokesman for USCIS said in addition to temporarily dropping biometric requirements for H-4 and L-2 visa applicants, the agency has committed to using available policy improvements to reduce the number of pending cases and overall processing times.

USCIS found itself with massive backlogs and “frontlogs"—applications never opened because of office closures—earlier this year thanks to the pandemic and Trump administration policies, Ur Jaddou, the agency’s director, said in a public appearance this week.

“USCIS has innovated and we’ve overcome quite a few challenges,” she said. “There’s a lot more to go, but we’re finding our way out of this.”

For applicants like Pathak, a plaintiff in another lawsuit filed over wait times in October, the process holding up their work eligibility remains opaque. Her employer has submitted two requests to expedite her case, citing work with clients who produce Covid-19 test kits and distribute personal protective equipment. USCIS denied both.

Pathak, whose work eligibility was previously delayed in 2019, said not being able to work or drive means “being forced to go into a shell essentially.” The process has forced her and her husband to consider their long-term future in the U.S.

“Every three years that this happens, the discussion starts again,” she said. “Do we really want to stick around and stay in this country?”

To contact the reporter on this story: Andrew Kreighbaum in Washington at akreighbaum@bgov.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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