H-4 Work Authorization and More

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Limited H-4 Work Authorization Begins Today

USCIS begins accepting limited H-4 dependent employment authorization application today. This announcement was made three months ago and the Notice and Comment process occurred last summer. USCIS is altering its priorities to ensure that these applications are adjudicated in a timely fashion.

This is not work authorization for all H-4 dependents of H-1B visa holders. H-4 dependent children are forbidden from employment. The majority of H-4 dependents are not allowed to apply for employment authorization. It is limited to those H-4 dependent spouses whose H-1B principals have an approved I-140 petition or have H-1B status through AC21 106(a) and (b) status (American Competitiveness in the 21st Century Act, which allows for an H-1B visa holder to extend the six year limit of H-1B status with a pending I-140 application). The H-1B visa is a dual intent nonimmigrant visa. Although it is a nonimmigrant visa, a holder does not need to have nonimmigrant intent. An employer can file an I-140 application for Permanent Residence. There are 140,000 immigrant visas available each year through the employment-based path.

In other employment immigration news, employment-based visa modernization has been added to the regulatory agenda. The rudiments at the moment indicate that, “DHS proposes to allow certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.” Please be aware that this does not mean rulemaking is imminent.

H-1B and H-4 News

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H-1B and H-4 News

As we head into a long weekend (Happy Memorial Day!), there is some news to share on the H-1B Specialty Worker Nonimmigrant visa and H-4 Dependent of the H-1B Visa.

H-1B News

USCIS released guidance instructing employers when to file amended petitions and labor condition applications. This comes on the heels of a decision from the USCIS’ Administrative Appeal Office. Employers of H-1B visa holders should be cognizant of their obligations to USCIS when they move employees to new work site locations.

 

H-4 News

A DC Federal Court heard a complaint filed against allowing H-4 dependent spouses access to work authorization. The basis of the suit is that H-4 work authorization is not statutorily contemplated. USCIS announced in February 2015 that May 26, 2015 will be the first day it will process H-4 work authorization claims. The court has not yet made a decision on whether it will issue an injunction or dismiss the case. USCIS is preparing to adjudicate its H-4 work authorization applications.

Not every H-4 dependent will be eligible for work authorization. Children are forbidden from applying. Spouses are eligible only if they meet one of two conditions. Their H-1B principal must either have a pending I-140 petition for Permanent Residence and is in AC21 (106)(a) and (b) H-1B status or have an approved I-140 Petition for Permanent Residence, but waiting for the priority date to become current.

Legal Representation for Asylum

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Difficulties for Women and Children in Finding Legal Representation for Asylum Cases

 

The Chicago Reporter posted a story yesterday on the obstacle that asylum seekers in Chicago face in findings lawyers. There are immigration courts in cities across the United States, including Chicago. The Chicago Immigration Court has seen nearly 1,500 cases of women with children in the past year and only 14% are represented by lawyers. According to TRAC at Syracuse University, that is less than half of the national average. TRAC’s data also reports that women and children who have an attorney representing them in their asylum cases are sixteen times more likely to be allowed to remain in the United States.

 

There are many issues that contribute to this current state. Whereas the Sixth Amendment of the United States Constitution guarantees that a defendant standing trial in criminal court is entitled to competent representation, the same protections do not exist in Immigration Court. The Due Process Clause of the Fifth Amendment does not carry the same robust guarantees. Chicago’s Immigration Court alone has 450,000 cases pending. We blogged this week that Immigration Court is facing its worst backlog in history. One judge in Chicago is assigned to each case involving unaccompanied children and women with children. An immigration judge in San Francisco believes that attorneys are important to resolving the crisis because representation “helps judges make the decisions they need with the information they need, and to work through those cases both more quickly and more fairly.”

 

Asylum can be a difficult legal standard for a seeker to meet, especially for individuals from certain countries with certain claims (gang-related claims from Central America require an exceptional angle). They can be notoriously difficult to prove with evidence and credibility needs to be established. It is also a discretionary form of relief, meaning that meeting the standard for it is not enough to merit a favorable decision.

H4 Work Authorization and H-1B PP

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H-4 Work Authorization and H-1B Extension of Status 

 

From May 26, 2015 to July 27, 2015, USCIS will be suspending premium processing for all H-1B Extension of Stay petitions. Please note that this is only for H-1B Extensions of Stay, not for executing an AC21 change of employment or any other H-1B petition. The reason for this suspension is that USCIS wants to dedicate resources to timely adjudications of H-4 nonimmigrant employment authorization applications. USCIS is expecting 180,000 applications.

In February, regulations were published that granted certain (not all) H-4 nonimmigrant spouses work authorization. An H-4 is an individual who is a dependent on an H-1B worker. It can be a child or a spouse of the H-1B worker. Work authorization is only available for spouses of H-1B workers who have a pending I-140 Petition (employment-based permanent residence) or have an approved I-140 Petition and are waiting for their priority date.

USCIS will be accepting applications for H-4 nonimmigrants on May 26. The Notice and Comment period was last summer and received an overwhelmingly positive response on behalf of granting work authorization.

Premium processing is a service that is available for many but not all employment-based petitions. For a fee of $1,225, you can request adjudication of a petition within 15 days. This does not apply for family-based petitions, such as a petition for your spouse.

Immigration Court Backlog

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Immigration Court Backlog Worsens

 

One of the major news stories of last summer was the unforeseen increase in the number of unaccompanied children who crossed the American border. It was a humanitarian crisis (President Obama’s phrase) by itself, but it also had practical ramifications for immigration court. It swelled the number of individuals facing trial in immigration court and increased the already present backlog.

Immigration Court is facing its highest caseload in its history. At the conclusion of April 2015, there are 445,607 cases pending before the Immigration Courts. That represents a 9.2% increase from the beginning of the 2015 Fiscal Year and an astounding 29.5% increase from the beginning of the 2014 Fiscal Year. The Executive Office of Immigration Review is part of the Department of Justice and an Article I Court (executive branch of government). The unaccompanied children are a small part, however, of the overall immigration court backlog.

Please note that EOIR, Immigration and Customs Enforcement, and Department of Homeland Security are separate from USCIS, which grants immigration and nonimmigration benefits for individuals not in removal proceedings.

The four most represented nationalities in Immigration Court at the moment are Mexico, El Salvador, Honduras, and Guatemala. This is probably explained by their proximity and the current country conditions. China is the fifth most represented nationality. The states with the most individuals in removal proceedings are California, Texas, New York, Florida, and New Jersey. These are among the most populous states in the Union and also the states that have the most immigrants and visitors overall.

 

Thank you to the Transactional Records Access Clearinghouse at Syracuse University for the statistics. It provides comprehensive, independent, and nonpartisan information about US federal immigration enforcement.