Tag Archives: H-1B

One H-1B Fee Eliminated

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H1b 2016October 1 is a significant date in government because it is the beginning of the fiscal year. It is also the date that the majority of cap-subject H-1B individuals begin their positions with H-1B status. There are always developments in H-1B visas to keep abreast of, so that employers can remain compliant. The Public Access File is a major part of that. Knowing whether an employee should be subject to certain taxes, such as FICA, is another.

The recent news in the H-1B world is that the fee penalties of Public Law 111-230 have sunset. H-1B and L-1 petitions that are filed on or after October 1 are not subject to this fee anymore.

In 2010, President Obama signed Public Law 111-230 into effect. This law increased the fees that certain employers had to pay to file some H-1B and L-1 petitions. Employer petitioners who employed 50 or more employees in the United States with more than 50% of its US workforce in H-1B or L-1 nonimmigrant status had to pay $2,000 for the filing of each petition. This fee existed on top of the normal filing fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act fees.

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.

Motion of Stay for DAPA, DACA

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The United States Department of Justice filed an emergency motion to stay a preliminary injunction against a series of executive orders issued by President Obama in November. Fourteen states plus the District of Colombia filed an amicus curiae to support the Justice Department’s stay. The stay is filed with the US Court of Appeals for the Fifth Circuit.

We have closely been following the developments of Texas v. United States, in which Texas and other states are suing against President Obama’s Expanded DACA and DAPA programs. Expanded DACA would grant deferred action status for three years to individuals who have been here since 2010 without status and are low priority for removal (plus other criteria). DAPA would grant deferred action to parents of US citizens and permanent residents who have been here since 2010 without status and are low priority for removal (plus other criteria).

DACA & DAPA Ruling

In mid-February, a federal judge in Texas ruled in favor of Texas on the grounds that the executive branch did not follow the normal rules of Notice and Comment in issuing the DACA and DAPA programs. Work authorization for certain H-4 dependents will be allowed starting May 26. That was part of the executive order program in November, but it had already undergone the Notice and Comment process.

 

H-4 Work Authorization

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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.

Immigration in State of the Union

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State of the Union 

“Yes, passions still fly on immigration, but surely we can all see something of ourselves in the striving young student, and agree that no one benefits when a hardworking mom is taken from her child, and that it’s possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants.” – Barack Obama, January 20, 2015

The word ‘immigration’ was only uttered twice Tuesday night in President Barack Obama’s seventh State of the Union speech, but the immigration motif was prevalent throughout the address.

The president made quick mention of the inherent unfairness of breaking apart families to remove a low-enforcement priority mother from her US citizen children. That is the basis of DAPA (Deferred Action for Parental Arrivals). The guiding light of American immigration policy is family reunification. Dismantling families would run contrary to that. DAPA is receiving most of the attention from Obama’s November 20, 2014 Immigration speech, in which he announced a series of executive orders to make incremental improvements to the immigration system in the face of congressional paralysis, especially in 2007 and 2013-2014. The “hardworking mom” mentioned during the speech would be someone that DAPA would protect temporarily, for the sake of keeping families intact.

The president dedicated much of his speech to trumpeting the job creation, research & development, innovation, and overall economic improvement of the United States in recent years. Underlying these important markers is immigration. American businesses rely on non-immigrant and immigrant visas to succeed. There are currently 140,000 Emplyoment-Based visas available per year and the H-1B visa system has been criticized for years by American businesses, some politicians, and immigration advocates as being damagingly low. The president has vowed to make improvements throughout the immigration architecture. He has declared his intention to modernize the employment process for immigration. We eagerly anticipate these reforms, as they will be in the best interests of our country, our fellow citizens, and immigrants.