Permanent Relief for Spouses of H-1B Holders Suffering From Backlog Needed

The Department of Homeland Security (DHS) recently published a temporary final rule to aid thousands of foreign nationals confronting lengthy delays on the approval of their employment authorization applications. This temporary rule, effective as of May 4, automatically extends the period of employment authorization for up to 540 days before the current expiration date for foreign nationals who have timely filed to renew. The temporary rule is only applicable to foreign nationals currently working in the United States on certain visas and is a measure in place through Oct. 27, 2023, to help both the U.S. Citizenship & Immigration Services (USCIS) and foreign nationals alike.

Formerly, the USCIS provided an automatic extension of 180 days past expiration of employment authorization for foreign nationals who filed an extension application prior to expiration, and met other necessary requirements based on their respective visa. Due to the devastating COVID-19 pandemic that is ongoing, the USCIS remains significantly impacted in terms of staffing and capability to process cases. This decreased capacity to process initial and extension of employment authorization applications, and other petitions, led to a surge in the number of cases backlogged for processing while also impacting foreign nationals’ ability to renew their drivers’ licenses, maintain their employment, and support their families while in the United States, even with the automatic extension of about six months. There are many examples of foreign nationals waiting more than a year for an approval on their employment authorization application, creating lapses in employment authorization and the inability to continue working for individuals in professions including nurses, physicians and other health care workers, with some employers terminating these individuals and others at a time when the United States needs foreign workers. Moreover, numerous employers like hospitals, universities, and other institutions were immediately challenged with staffing concerns affecting their ability to continue functioning as normal.