H4 Work Authorization and H-1B PP

Posted on May 20, 2015 by Arjun Mishra

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.

H-1B Season News

Posted on February 27, 2015 by Arjun Mishra

H-1B Decision Overturned in Favor of Applicant

It can be notoriously tricky to define what a “specialty occupation” is, and it is necessary to show that an occupation is a “specialty occupation” for the purposes of an H-1B visa. That is the predicate of an H-1B visa; an employer is seeking an employee in a specialty occupation, according to INA 101(a)(15)(H) and 8 CFR § 214.2(h)(4)(ii).

H-1B visa issues do not often reach the federal courts, so it is noteworthy when one does. It is punctuated by the unexpected result – courts give tremendous deference to agencies in interpreting their own rules. A strong body of case law supports that, so when a federal court overturns an agency’s interpretation, it is newsworthy. As the court wrote in its opinion, “While judicial review of agency decisions is highly deferential, it is not without teeth.”

In Raj and Company v. USCIS, an employer petitioned for a potential employee as a Market Research Analyst in 2012. The potential employee had a Bachelor’s Degree from a United States college. The H-1B visa requires a college degree equivalent to the US college degree USCIS requested more information to demonstrate that the position corresponded with a specialty occupation. There are four criteria used in determining whether an occupation is “specialty.” The employer responded with an abundance of documents to argue the point of specialty occupation, but USCIS responded with a denial. The appeal was taken to the Western District Federal Court of Washington. The court determined that the employer and beneficiary of the proposed H-1B were correct; a Bachelors’ degree is required to perform the position of “Market Research Analyst.” The federal court overturned USCIS’ denial.

H-4 Work Authorization

Another piece of important news for H-1B visa holders and their dependent spouses (H-4) was released this week. USCIS announced that effective May 26, 2015, certain H-4 visa holders will be able to obtain work authorization (regulations). They can concurrently file I-765 (Work Authorization) applications with their I-539 (Change or Extension of Status) applications. Their H-1B principals must have an approved I-140 (Employment-Based Green Card application) or have an H-1B extension subject to AC-21. An AC-21 extension means that someone is in H-1B status beyond the normally allowed six years (two three-year terms). H-1B holders sometimes end up being in H-1B status for upward of 16 years – two three-year terms of H-1B plus ten years of extended H-1B while waiting for the permanent residence date to become current. Long waiting periods are endemic with some EB-2 and EB-3 Green Card applications. The limited work authorization for H-4 visa holders is a smart move by DHS, recognizing that families of H-1B visa holders are economically injured in their years of waiting and sometimes have to abandon their Green Cards as a result. Please note this does not apply for H-4 minor children.

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.

Immigration in SOTU Tonight

Posted on January 20, 2015 by Andrew Wood

“My presidency is entering the fourth quarter. Interesting stuff happens in the fourth quarter.”

President Barack Obama, 12/19/2014

The annual State of the Union is the president’s opportunity to sketch out an agenda for the year, emphasize his priorities, and deliver reprimands and congratulations. The broad topic of immigration is bound to receive some air time in the speech tonight. The past year has been an intensive year in immigration for President Obama, one in which Congress dithered on passing immigration reform and performed various legislative delay tactics on an important issue that seemed prime for change in 2012. After initially waiting for the midterm elections in November, President Obama announced a series of executive orders that to improve our overall immigration system in various ways. The highlights of the speech included work authorization for H-4 visa holders (dependents of H-1B visa holders), Deferred Action for Parent Arrivals (DAPA), expanding the provisional waiver, and a pledge to modernize the nonimmigrant and immigrant visa programs. Opposition to this approach culminated last week when the US House of Representatives voted against funding DAPA and DACA (Deferred Action for Childhood Arrivals). The Senate has yet to vote, but it is expected that it will vote against the bill.

We are excited to see the president’s speech as it pertains to immigration. We are hopeful that it will continue to build upon his immigration speeches from November, as our immigration system incrementally improves for the better of immigrants, non-immigrants, and United States citizens. We will recap our thoughts on the immigration portion of the State of the Union address later in the week.

DHS Proposes H-4 Employment Authorization

Posted on May 15, 2014 by Andrew Wood

The Department of Homeland Security (DHS) has published a proposed rule available for public comments that would allow certain eligible H-4 dependent spouses to apply for employment authorization. An H-4 visa is for the spouses and children under 21 years of age of H-1B visa holders, who are employed in the United States in specialty occupations. DHS touts this possible regulatory change as an important way to alleviate the economic burdens that dependent spouses of principle H-1B holders face. Another important benefit could be easing the transition from nonimmigrant to lawful permanent resident status. The possibility of employment authorization would be limited to H-4 visa dependent spouses where the principal H-1B spouse is the beneficiary of an approved I-140 EB visa petition and where the H-1B spouse has been granted a post-6th year H-1B extension under the American Competitiveness in the 21st Century Act.

DHS announced this proposed rule as a possibility over a year ago. The ostensible reason for authorizing H-4 dependents for employment is to increase retention of highly skilled H-1B workers in the United States. One of the pressing problems, which is mentioned frequently in the public comments section, is that the wait for long-term permanent residence is lengthy. This may also have the effect of encouraging the entry of H-4 eligible spouses who were separated from their H-1B spouses in order to continue their own careers in the United States. The public comments contain many personal stories of immigrants and their spouses facing problems that this proposed rule would help solve, such as talented spouses who were excelling in their careers in their home country being precluded from practicing their professions in the United States. Opposition to the proposed rule focuses on concern that U.S. citizens will be laid off in favor of cheaper labor. Immigrants have expressed concerns their fear that H-4 holders will end up working in low-skilled position in restaurants and gas stations, rather than pursuing their career paths.

The public comment was made available on May 12 and comment period will end on July 11. If you would like to add your own comment, you may here.