H-4 Travel Reminder

Posted on March 25, 2016 by Arjun Mishra

Important H-4 Visa Travel Reminder from USCIS

USCIS released an important reminder yesterday: applicants who are attempting to change their status to H-4 (dependent of H-1B) status should not leave the country during the application’s pendency. If they depart the country, the Change of Status application will be denied because the application will be considered to be abandoned. If the applicant files an application for Employment Authorization and departs the United States because the change of status is approved, that will also be considered abandoned with the Change of Status application.

H-4 status is for the dependents of H-1B principals. It is very restricted on work authorization, only permitting it for a subset of H-4 holders. The majority of H-4 visa holders are not allowed to pursue work authorization. An advantage of H-4 status is that it does not count against the time limit spent in H-1B or L-1 status. As many hopeful applicants have employers applying for their H-1B applications, it is important for family members in non H-4 status to be aware of the ramifications of traveling abroad while the H-4 change of status application is pending.

Employment Authorization Lawsuit

Posted on January 27, 2016 by Arjun Mishra

Class Action for Late Employment Authorizations

The Northwest Immigrants Rights Project and The Advocates for Human Rights, using 3 immigrants as plaintiffs, have filed a class action lawsuit against USCIS. The lawsuit was filed in May 2015 and the organizations filing the lawsuit are seeking immigrants they can include in the lawsuit. The claim in the class action suit is that USCIS is taking longer than 90 days to adjudicate Employment Authorization Cards. Federal regulations dictate that USCIS must decide whether an applicant receives a card within 90 days of receiving the application. The lawsuit charges USCIS with not adhering to the mandatory 90 days.

Employment Authorization Cards are important for many reasons, chief of which is granting someone the legal authority to work. A person can apply for the card for a variety of reasons. Someone applying for an adjustment of status may want the card while the application is pending. An asylum applicant waiting 2.5 years for the interview can obtain the document and work. A VAWA applicant, qualified H-4 dependent, E-2 dependent, DACA recipient, and host of other categories of foreign nationals in the United States can benefit from the Employment Authorization Card. Not having possession of a valid card can have dire consequences for applicants, who need the card for legal work authorization.

The American Immigration Council has a call out for immigrants who believe they have been affected by late adjudications.

With this in mind, it is crucial to file for your employment authorization card as timely as possible. Most applications require a $380 filing fee, so it is important to file on time, meet the requirements, and plan financially.

H-4 Work Authorization and More

Posted on May 26, 2015 by Arjun Mishra

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 21^st 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.

Motion of Stay for DAPA, DACA

Posted on March 12, 2015 by Arjun Mishra

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.

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.