H-4 Work Authorization

Posted on February 24, 2015 by Arjun Mishra

USCIS announced a new rule today, February 24, 2015, allowing H-4 visa holders in certain situations to obtain work authorization. Work authorization would not change their H-4 dependent status on an H-1B principal. Successful applicants can apply for an employment authorization card on May 26, 2015. Please note that employment authorization applications can often take three months.

Work authorization is permitted for H-4 visa holders who have an H-1B principal with a pending I-140 (employment-based application) or with an approved I-140 under AC21. AC21 104(c) and 106(a) allow for H-1B visa holders to extend their status with a pending or approved I-140 application for permanent residence. Individuals from countries such as India, China, and the Philippines have excruciatingly long waits for their priority date, even when they are approved for their Green Cards through EB-2 or EB-3 categories. During those waits, H-4 visa holders will be able to work.

This will bring much relief to H-4 visa holders and should help local economies benefit from talented individuals who can now contribute. This proposal was announced with the series of Executive Actions from November 20, 2015 that primarily focused on deferred action for parents of Americans and expanded DACA. However, there are also executive orders that have more support, such as allowing certain H-4 visa holders to obtain work authorization and employment.

November 2014 was not the first mention of permitting H-4 work authorization. Over the summer of 2014, a Notice and Comment period generated enormous support for the proposal, with H-4 and H-1B visa holders voicing their espousal of such a rule. Opposition was minor and consisted of fear that H-4 visa holders would be discriminated against and forced into menial labor positions.

The Law Offices of Andrew Wood applauds USCIS for announcing this rule and looks forward to assisting H-4 visa holders obtain employment authorization. If you would like to learn more about how we can assist you, please drop us a line.

Emergency Stay Filed by DOJ

Posted on February 23, 2015 by Arjun Mishra

The Department of Justice filed an emergency stay today in the Obama administration’s quest to restart the DAPA (Deferred Action for Parents of Americans) and expanded DACA (Deferred Action for Childhood Arrivals) programs that were enjoined last week. Judge Harlam of a federal court in Texas issued an injunction last week, shutting down the two programs before they could accept applications. Guidelines were issued for both DAPA and DACA. DACA was set to begin on February 18 and DAPA was tentatively scheduled for May.

Deferred action is a type of prosecutorial discretion that the executive branch exercises to allow migrants who lack immigrant or non-immigrant status to remain in the United States. Neither of the deferred actions would grant actual status. They would allow qualifying applicants to acquire an employment authorization card, so that they could work legally, along with a three-year grant to stay in the United States without the threat of removal or deportation. The criteria for the programs can be found here and here.

The overriding policy of US immigration law is family reunification and the programs were designed with that mind. Immigration action has come in the form of executive action, a result of congressional inaction on passing immigration reform or the DREAM Act. The programs are supposed to be temporary measures while meaningful reform can occur through the legislative process.

26 states, led by Texas, petitioned to shut down the expanded DACA and DAPA programs, citing economic harm and executive overreach. The Department of Justice has announced its intention to appeal the federal decision.

Other aspects of the executive actions from November are unaffected. In addition, DACA as originally implemented on June 15, 2012 remains in effect for recipients and future applicants.

Judge Stops DAPA and New DACA

Posted on February 18, 2015 by Arjun Mishra

A federal judge in Texas temporarily stopped the expanded DACA and DAPA programs. Today, February 18, 2015, USCIS was supposed to begin accepting applications for expanded DACA (Deferred Action for Childhood Arrivals). DHS Secretary Jeh Johnson issued a press release acknowledging the decision to shut down the two programs temporarily before they even began accepting applications.

The lawsuit involved 26 states that argued the Obama Administration had exercised substantive and legislative powers that only belong to the legislative branch. Executive actions pertaining to immigration have been issued by every president since Eisenhower. The government noted that deferral actions have been taken since the 1960s in their brief. The judge agreed with the 26 states, finding unconstitutionality in his order. DHS vows that it will appeal the decision. The Office of Legal Counsel, which serves an advisory role for the executive branch, issued an opinion on November 19, 2014 (the day before the executive actions were announced by President Obama). The opinion advised that DAPA and an expanded DACA program would be legal and within the constitutional powers of the president.

The older version of DACA remains in effect and the recipients of DACA are not affected by this decision.

That first version of DACA was not at issue in the lawsuit, though it was tangentially mentioned and criticized. Seeing as over half of the states participated in bringing this lawsuit and the Obama Administration and DHS are planning to appeal, more court battles are expected over the separation of powers, adherence to the Administrative Procedure Act, and DAPA and DACA. The president issued his series of executive orders in November 2014 as a result of congressional inability to pass comprehensive or incremental immigration reform that has been clamored for years. The Senate passed immigration reform in 2013, providing a pathway to citizenship, but that bill did not become law because the House voted against it.

DACA – February 18

Posted on February 10, 2015 by Arjun Mishra

The DACA Process

USCIS Will Start Accepting Expanded DACA Applications on February 18

DACA (Deferred Action for Childhood Arrivals) was established as a temporary relief measure for individuals who were brought to the United States as children and grew up in the US. President Barack Obama created the program through an executive order for the purpose because legislative efforts to create a DREAM Act had been stifled in Congress. A DREAM Act would allow for a path to citizenship for “dreamers,” individuals who had come to the United States as children and had continuous residence in America. Essentially, they were raised in the United States and had their entire lives in the country. DACA is only limited relief, as it provides for two years of deferred action against deportation and work authorization upon proving the seven criteria and prosecutorial discretion. This blog has covered DACA and the president’s executive actions with great interest, while hoping that meaningful immigration reform will be enacted.

Neither the DREAM Act nor comprehensive immigration reform have become bills and the president has responded with a series of executive orders that can offer temporary relief until congressional action is taken. The executive orders range from minor improvements in employment immigration to relief for millions of parents of US citizens and lawful permanent residents with the DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program. Part of the executive order is the expansion of DACA, making it available for more individuals. The requirements have changed, so that the age restriction is removed and the date for continuous residence is January 1, 2010. Instead of two years of deferred action, like DAPA, it will grant three years for successful applicants.

Expanded DACA goes into effect on February 18. It requires a filing fee for the application and biometrics (fingerprints) and extensive proof to document continuous residence. USCIS and immigration groups have been warning potential applicants not to be fooled by impostors or fraudulent individuals who pose as legitimate attorneys. Notarios, as they are deemed, can harm immigrant applications immediately and also saddle applicants with negative future consequences.

DACA nor DAPA grants a Green Card, US citizenship, or even a pathway to either. The programs merely allow for individuals who are low-enforcement priorities (according to recent memos pursuant to the executive orders) to obtain temporary relief while permanent legislation is enacted for actual relief. Until the political process generates a meaningful result, the executive orders will have to make do.

I Squared: More H-1B Visas

Posted on January 29, 2015 by Arjun Mishra

The Immigration Innovation (I Squared) Act of 2015 is a bipartisan proposal by the US Senate to encourage the influx and retention of “high-skilled” talent and labor in the United States. The focus of the bill is the H-1B visa, which is for foreigners with a job opportunity, in a specialty profession that requires a bachelor’s degree. The other requirements are that the employer will pay the foreign employee at the prevailing wage or actual wage and that the hiring of the employee will not adversely affect the working conditions for US workers. To obtain an H-1B visa is an entire process for the employer (labor condition agreement, attestations, expenses), and although some employers fall into H-1B dependency, some of the most powerful and wealthy companies (also, small and medium-sized businesses) have clamored for H-1B visa reform for years and years as part of necessary immigration reform to keep American globally competitive. The H-1B visa can be used for a variety of professions – medicine, accountant, engineer – but it seems that its preponderance is located in computer-based professions.

I Squared has specific proposals that please the advocates of H-1B reforms. They are (not exclusively):

Increasing the cap of visas from 65,000 to 115,000;
Eliminating the 20,000 Master’s Degree or higher exempt visas;
Employment Authorization for H-4 spouse visa holders (H-4 visas are for dependents and the recent executive actions intimate at work authorization for H-4 holders);
Exempting dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap;
Removing the annual per-country limits for employment-based visas;
Instituting a grant program to promote STEM education and US worker retraining

An important aspect of increasing the visa cap to 115,000 is that number represents the floor on the number of visas to be issued for the fiscal year. That number can elevate to 195,000 depending on demand for that particular year.

Even if this bill were to become a law in short order, its provisions would not apply to the current round of H-1B applications. H-1B applications need to be sent out by March 31 for the April 1 filing date to be considered for October 1, when the fiscal year begins. As the cap is usually reached that first week in October, timing is crucial. The consistent and excessive demand for H-1B visas proves that reform in this category is necessary. Although it seems to have the appearance of bipartisan support, the legislative and political process will still have their say. Senator Orrin Hatch proposed a similar bill in 2013 (with the possibility of a 300,000 visa cap) that did not flourish into a bill. Regardless, we remain hopeful that the H-1B visa system and employment-based immigration will be improved in short order.