“I was very excited initially, but when the guidelines came out, it became clear that the Shergill Vs Mayorkas settlement doesn’t help. It is the biggest eyewash," says Neha Mahajan, who has spent a significant part of her years in the US on Capitol Hill as an activist to bring attention to the lives of highly educated immigrant spouses of highly skilled workers in USA.
Adjucating an H-4 Visa Takes USCIS 12 Mins, Why Is It Taking Them 12-17 Months?
Referring to Shergill v. Mayorkas, the famous landmark outcome of a class action lawsuit in a federal court in Washington state, Neha clarifies,
The court agreed that L-2 visa gives them power to work without applying for an EAD, but not so for our H-4s. Adjucating an H-4 visa takes USCIS 12 minutes of their time, why is it taking them 12-17 months? My question is, what good will the auto extension judgment do for H-4 EAD holders, as their H-4EAD will expire at the same time as their H-4. We wanted them to hold USCIS accountable for this discrepancy.Neha Mahajan
The Shergill v. Mayorkas settlement has brought to the fore, once again, job losses suffered by H-4 visa holders due to the bureaucratic functioning of United States Citizenship and Immigration Service (USCIS).
H4 visa holders are spouses, majority being highly educated Indian women, of H-1B work visa (a category which allows highly skilled foreign workers to find employment in US) holders. H-4 spouses who have approved green card (permanent residency) petitions, need permits (EAD - Employment Authorisation Document) to be able to seek employment in US.
93 Percent of H-4EAD Holders Are South Asian Women
According to USCIS data, 93 percent of the more than 90,000 people who were granted new H-4EADs from 2015 to 2018 were women, most of them from India. 93 percent of H-4EAD holders are South Asian women.
The Shergill v. Mayorkas lawsuit was filed by 15 immigrant plaintiffs, mostly Indian women, who have suffered numerous breaks in their careers due to inefficient visa and employment permit renewals by US government.
The class action lawsuit was filed by Wasden Banias law firm, attorney Steven Brown from Reddy Neumann PC, and attorney Kripa Upadhyay of Orbit Law, along with American Immigration Lawyers Association (AILA), on 21 September at a federal district court in Washington state.
The plaintiffs successfully argued that L-2 visa holders do not need any EAD to work in the first place according to US statute. The second argument was that DHS (Department of Homeland Security) was unlawfully withholding the automatic extension of H-4EAD. In a settlement reached between Department of Homeland Security and the plaintiffs, both the points put forth by the plaintiffs were fulfilled.
Indian American Women With H-4 Visas in Distress as Renewals Take Long Time
Wait times for employment authorization permits and renewals have become the bane of existence for most H-4 holder Indian American women and their families. Neha Mahajan came to US in 2008 on an H-4 visa, and hence was unable to seek employment till 2015.
Former famous host of an FM desi radio show in the New York-New Jersey area, she was a journalist and popular news anchor on TV Today’s ‘Aajtak News Network’ in New Delhi before moving to US. In spite of her Masters in English Literature and an illustrious media career, she was a dependent for seven years.
She became an activist and a strong supporter of work authorisation for H-4 visa holders, co-founding the advocacy group SIIA (Skilled Immigrants in America), which has reached out to hundreds of State and federal lawmakers, sharing with them experiences of highly qualified, ambitious H-4 spouses, mostly Indian women.
It took many years of efforts by H-4 visa holders like Neha to bring about an executive order in 2015 granting employment authorisation for H-4 holders who had approved Green Card petitions, referred to as ‘Americans in Waiting’ by President Obama. Neha received her H-4 EAD soon after, but continues to face breaks in her career due to employment authorization renewal delays.
Delayed Renewals Make Immigrant Women Lose Jobs
This is the story of hundreds of thousands of Indian American immigrant spouses—women—in ‘liberal’ USA, who not only are in the decades-long uncertain green card queue, but also have to suffer numerous, long demoralising breaks in their careers.
The EADs granted by the Obama administration saw Trump administration insert delays to thwart timely renewals - renewals that took only 90 days till 2016, now take anytime between 6-24 months, causing immigrant women to lose unemployment.
The Shergill v. Mayorkas settlement will find place in history books, as it is a step towards immigration reform. It does bring immediate relief to L-2 visa holders, spouses, mostly women, of L-1 visa holders, a category of professionals who are intracompany transfers to the USA.
New Jersey based Indian-American radio jockey Ritu Tiwari is elated with the outcome of the Shergill v. Mayorkas settlement,
I am very happy with this news! I moved from Connecticut to work at Radio Mirchi. I am from India, from a non-tech background. To get a non-tech job is hard as it is. As an L-2, you are dependent on your husband. My job gave me confidence and financial stability. With this news, there is no sword hanging on my neck any more. The person who hires me knows that I will stick there.Ritu Tiwari
Shergill Vs Mayorkas Case Doesn’t Address H-4 EADS Adequately
But unlike L-2 visa holders, most H-4 visa holders don’t find the Shergill settlement to be of benefit to them—they will have to continue to file for EADs and renewals.
The 180-day automatic extension to H-4 EADs will help only a slim majority. Neha Mahajan now works at Chugh LLP, a law firm. Their senior partner and business immigration expert, attorney Min Kim agrees that Shergill v. Mayorkas doesn’t address H-4 EADs adequately,
It’s not really a noticeable benefit for H-4 spouses. To be eligible for the auto 180-day renewal, they need an unexpired H-4 visa. Most file for H-4 extension and H-4 EAD at the same time—they won’t have time left on H-4 as both expire on the same day. Only a minor number will have a non-concurrent situation. This benefit is not a benefit at all. USCIS celebrated this news as wanting to be nice to H-4 holders, but they were being disingenuous.Attorney Min Kim
Attorney Jon Wasden of the Wasden Banias law firm that successfully co-led the Shergill et al. v. Mayorkas lawsuit, finds renewal delays caused by United States Citizenship and Immigration Services to be unwarranted,
Five years back, delays were unheard of—it took just two-and-a-half to three months. The government has said it takes 12 minutes to process form I-765 (employment authorization). Current delays are completely uncalled for. The agency's only defence was Covid. They could have used creativity to come up with solutions to reduce delays. It just highlights how inept the government is.Attorney Jon Wasden
'Under Trump Administration The Extensions Were Maliciously Held Back'
Washington-based attorney, Kripa Upadhyay, Founder of Orbit Law, was a key member of the Shergill v. Mayorkas litigation team.
An immigrant herself, South Asian American Kripa understands the frustration of highly skilled workers,
Under Trump administration the extensions were maliciously held back. Wait times ballooned to over a year. By and large H-4 spouses are people who are needed in American ecosystem. My H-4 clients are doctors, mental health professionals, teachers. We are making it difficult for them to work and contribute to society which is inherently unfair. How does one advance in a career as you are in this vicious cycle, continuosly being hired and fired, and rehired and fired? I understand the anger in the H-4 community completely.Attorney Kripa Upadhyay
She goes on to explain that H-4 EADs were not the focus in Shergill v. Mayorkas lawsuit, “That’s the frustration with the Shergill decision - it did not focus on H-4 EADs. A separate lawsuit is filed and pending for H-4 EADs. All I will say is that systemic change takes time. Immigration attorneys as a whole are engaging in policy discussions and trying to make changes. Please have patience. There are several lawsuits pending. With this administration we have an opportunity.”
Kripa is referring to the Biden administration being relatively more immigrant-friendly.
'Would Love If We Get Edakunni As a Christmas Gift'
The lawsuit that promises broad changes and addresses delays for employment authorisations, is Edakunni (a South Asian/Indian name), which was filed in March 2021, also in Washington state, and is yet to be decided.
In fact the Shergill settlement evolved from the still pending Edakunni case. Attorney Jon Wasden of the Wasden Banias law firm is as hopeful about Edakunni as he was about Shergill, “It was a strong case with issues of auto extension and L-2 status. It was very clear that we were going to win. The government didn’t have any valid arguments. They had to settle to our demands. I definitely feel the same for Edakunni, which has claims that are way more broad—absolute deadline of 180 days for H-4 processing, H-4 and EADs at the same time. I am comfortable.”
Kripa Upadhayay of Orbit Law wishes, “I would love for it (Edakunni) to come before Christmas. It would be a wonderful Christmas gift!”
Not Everyone is Hopeful From the Edakunni Lawsuit
But Taran (name changed) is not willing to risk any more breaks in her employment. A physician and teacher at a medical school in India, Taran gave up her career to come to US with her H-1 B visa holder husband, to ‘start from zero’.
She had to give up her career once again in US, when she lost her employment because of H-4 EAD renewal delays.
Hence, in 2020, Taran moved to Canada to build a nursing home career. Her husband and two children stayed in Seattle. Even as Indian-American H-4 EAD holders await with hope, the decision on the Edakunni filing, Taran and her family are not willing to endure the US immigration queues again,
I am about to get my PR in Canada next month, in just a year-and-one-month of filing. My husband, son, and daughter will hopefully move to Canada in summer. We have no interest in US at all, if they can’t give us stability then why think of staying there?Taran
(Savita Patel is a senior journalist and producer, who produced ‘Worldview India’, a weekly international affairs show, and produced ‘Across Seven Seas’, a diaspora show, both with World Report, aired on DD. She has also covered stories for Voice of America TV from California. She’s currently based in the San Francisco Bay Area. She tweets @SsavitaPatel.)
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