On Friday, March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced a temporary suspension of the premium processing option for all H-1B petitions filed on or after April 3, 2017. This suspension includes Fiscal Year 2018 H-1B Cap cases, as well as cap-exempt petitions.

Premium processing is an expedited filing option for certain nonimmigrant and immigrant visa petitions.  Employers may submit a premium processing request on Form I-907 and pay an additional filing fee of $1,225 so that USCIS will take action on that petition within 15 calendar days. The premium processing option allows companies additional time to develop alternative employment strategies for its employees.  It also affords peace-of-mind for employer-sponsors and employee-beneficiaries. Most notably, premium processing reduces the risk of nonimmigrant status issues that may arise from an employee’s international travel plans.

USCIS stated that this suspension has been implemented in an effort to reduce overall processing times for regularly filed H-1B petitions, which are currently taking eight to 10 months to process. USCIS confirmed that the suspension is likely to last at least 6 months to allow adjudicators to catch up on the existing backlog.

Employees should contact HR, and companies are encouraged to work with their immigration legal counsel to evaluate options in light of the suspension.  Delayed processing times could affect continued employment eligibility as well as travel eligibility for H-1B employees.

USCIS has stated that it will accept an expedite request for an H-1B petition if the company can demonstrate that it meets at least one of the following criteria:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request furthers the cultural and social interests of the United States;
  • Department of Defense of national interest situation;
  • USCIS Error; or
  • Compelling interest of USCIS.
  • To demonstrate that a company’s need for an expedited H-1B approval falls under one of these criteria, significant documentary evidence must be submitted and the ultimate decision will be at the discretion of USCIS. Lane Powell will continue to evaluate options and provide updates.

On February 25, 2015, the U.S. Department of Homeland Security published a Final Rule confirming that certain H-4 spouses will be eligible to apply for U.S. work authorization.  Following is an outline of this new Final Rule and how new H-4 work regulations will be implemented in the near future.

***

ARE ALL INDIVIDUALS IN H-4 STATUS NOW AUTHORIZED TO WORK IN THE UNITED STATES?

No.  Only certain individuals in H-4 status are eligible to apply for U.S. work authorization, based on their spousal relationship to an H-1B worker who has reached certain thresholds in his or her permanent, employment-based sponsorship by a U.S. employer.  The criteria for H-4 work authorization eligibility are narrow and specific.  Considerably less than 50% of H-4 spouses will be eligible to apply for work authorization.

Also, eligibility is limited to H-4 spouses only.  Dependent H-4 children are not eligible to apply for work authorization under the new rule.

WHICH H-4 SPOUSES ARE NOW ELIGIBLE FOR WORK AUTHORIZATION?

According to the final rule and new DHS regulations, all of the following criteria must be met to qualify for H-4 work authorization:

  • The H-4 applicant must be married to an H-1B specialty occupation worker;
  • The H-1B worker must be either:
    • a) the beneficiary of an approved I-140 petition
      OR
    • b) the beneficiary of an approved H-1B extension petition beyond the H-1B six-year limit based on AC21 s. 106(a) or (b) (due to having a PERM application or I-140 petition filed and pending for over 365 days, being the beneficiary of an approved I-140 petition, or having an I-485 application filed and pending);
  • The H-1B worker must currently hold valid H-1B status; and
  • The H-4 spouse must currently hold valid H-4 status.

I MEET THE CRITERIA FOR H-4 WORK AUTHORIZATION.  CAN I APPLY FOR U.S. JOBS IMMEDIATELY?

While you could apply for a job, a U.S. employer would not be able to hire you until you have received an official Employment Authorization Document.  Even H-4 spouses who meet all the eligibility criteria are not automatically authorized to work in the United States.  To officially obtain work authorization, you must file an application to U.S. Citizenship and Immigration Services for an Employment Authorization Document (aka “EAD” or “work permit”).  All U.S. employers are required to examine documents which prove your U.S. work authorization shortly after your hire.  If your only work authorization eligibility comes from your H-4 status and you do not have an EAD, no U.S. employer will be able to legally offer you work.

OK, I UNDERSTAND I NEED AN H-4 EMPLOYMENT AUTHORIZATION DOCUMENT (EAD) TO BEGIN WORK.  CAN I APPLY FOR MY EAD IMMEDIATELY?

No.  Changes to U.S. immigration rules and procedures typically require time to be implemented by U.S. government agencies, and this will hold true for the new Final Rule on H-4 spousal work authorization.  U.S. Citizenship and Immigration Services (USCIS) has announced it will begin accepting H-4 EAD applications on May 26, 2015.  Applications filed prior to this date may be rejected or denied.

WHEN THE APPLICATION WINDOW OPENS, WHAT FORM SHOULD I FILE, AND WHAT DOCUMENTS/EVIDENCE WILL I NEED TO SUBMIT ALONG WITH MY APPLICATION?

USCIS Form I-765, Application for Employment Authorization, is the application form which will be used for H-4 EAD applications.  Applications must be accompanied by a filing fee of $380.

Although USCIS has not yet modified its filing instructions for Form I-765 to include specific guidance for H-4 EAD applicants, it would be prudent to prepare evidence addressing all eligibility criteria, i.e.:

  • Marriage Certificate: The H-4 applicant must be married to an H-1B specialty occupation worker;
  • The H-1B worker must be either:
    • I-140 Approval Notice: a) the beneficiary of an approved I-140 petition
      OR
    • H-1B Extension (I-129) Approval Notice, along with Receipt Notice/Proof of Filing dated over 365 days ago for ETA Form 9089 or Form I-140; or I-140 Approval Notice; or I-485 Receipt Notice: b) the beneficiary of an approved H-1B extension petition beyond the H-1B six-year limit based on AC21 s. 106(a) or (b) (due to having a PERM application or I-140 petition filed and pending for over 365 days, being the beneficiary of an approved I-140 petition, or having an I-485 application filed and pending);
  • Current I-94 Record evidencing valid H-1B status, along with recent paystubs from H-1B employer: The H-1B worker must currently hold valid H-1B status; and
  • Current I-94 Record evidencing valid H-4 status: The H-4 spouse must currently hold valid H-4 status.

Before the application filing window opens on May 26, USCIS may issue further guidance as to required supporting documentation, including but not limited to these items.  Be sure to check USCIS’s website at: http://www.uscis.gov/i-765 for full instructions prior to filing.

WHAT CAN I EXPECT FROM THE USCIS APPLICATION PROCESS AND HOW SHOULD I PLAN AHEAD FOR FILING?

Average processing times for EADs, as of the time of this blog publication, are 2-3 months.  The H-4 Final Rule corroborates that USCIS should adjudicate the application within 90 days of receipt.

There are a few collateral considerations you should also keep in mind when preparing to file your H-4 EAD application, including:

  • When does my H-4 status and my spouse’s H-1B status expire?
  • Will the period of validity on my H-4 EAD be limited or foreshortened due to my upcoming H-4 status expiration?
  • Am I eligible to apply to extend my H-4 status right now?  (If so, consider filing your EAD application concurrently with your I-539 extension of status application.)
  • Is my spouse eligible to apply to extend his or her H-1B status right now?  (If so, consider filing your EAD application and your I-539 extension of status application concurrently with your spouse’s I-129 petition.  If the I-129 petition is filed under USCIS’s Premium Processing program, this might be a strategy which would yield faster processing of your applications.)

Note: as of the date of publishing this blog, USCIS has not yet released details regarding the prospective validity period of H-4 EADs, or the prospective processing of concurrently filed applications.

I DON’T PLAN ON WORKING IN THE UNITED STATES.  IS THERE ANY REASON TO APPLY FOR AN H-4 EAD ANYWAY?

Even if you do not plan to work in the United States, receiving U.S. work authorization allows you to apply for and be issued a U.S. Social Security Number.  Some individuals find having a U.S. Social Security Number desirable or useful.

IS THERE ANY REASON I MIGHT NOT APPLY FOR AN H-4 EAD IF I AM ELIGIBLE TO DO SO?

Any applicant who has more than one option for employment authorization should assess which one is the most favorable.  Practically speaking, H-4 EADs will be most useful for individuals which are subject to backlogs in employment-based immigrant visa categories.  These include spouses of H-1B workers from all countries whose employment-based sponsorship is in the EB-3 (third-preference) category, or spouses of H-1B workers from China or India whose employment-based sponsorship is in the EB-2 or EB-3 category.

Other prospective H-4 EAD applicants (i.e. spouses of EB-1 beneficiaries, or non-China/India spouses of EB-2 beneficiaries) may be eligible to immediately apply to USCIS for adjustment of status, and may be eligible for EADs on this basis, without needing to maintain H-4 status.

***
The full text of DHS’s Final Rule, including public comments and specific amendments to 8 CFR 214.2(h) and 274a, can be found in the Federal Register at: https://www.federalregister.gov/articles/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses.  An official press release from DHS/USCIS regarding the EAD application process can be found at: http://www.uscis.gov/news/dhs-extends-eligibility-employment-authorization-certain-h-4-dependent-spouses-h-1b-nonimmigrants-seeking-employment-based-lawful-permanent-residence.

 

In a bold move, on November 20, 2014, President Obama announced his Immigration Accountability Executive Actions to address flaws in the current immigration system.  The plan contains three parts:

  1. Enhanced border enforcement and employer crackdowns for ongoing immigration violations;
  2. Administrative relief from deportation to allow certain undocumented immigrants to apply to remain in the United States; and
  3. Business-friendly policies to enhance U.S. competitiveness and attract foreign investment and talent.

While the focus has been on the administrative relief, the rest of the plan offers potential improvements for some employment-focused immigration categories:

  •  L-1B specialized knowledge workers:
    • Clarifying the rules to bring greater coherence and integrity, to “enhance companies’ confidence in the program”
  • H-4 spouses of H-1B workers:
    • Providing work authorization to spouses once the H-1B worker’s green card process is well underway
  • Foreign nationals caught in a backlog while seeking permanent resident status:
    • For foreign workers in line for a green card, removing unnecessary restrictions on natural career progression without being tied to one job
    • For their spouse and children, providing work authorization at an earlier stage through a registration process
    • Allowing spouses and children of lawful permanent residents to apply for waivers of unlawful presence without leaving the U.S.
  • For F-1 foreign students eligible to work after graduation from a U.S. college or university:
    • Expanding the degree programs eligible for extended periods of work beyond 12 months
  • For foreign inventors, researchers, and founders of start-up enterprises:
    • Making the “national interest waiver” category available for permanent resident status
    • Offering temporary parole in the U.S. under the “significant public benefit” standard
  • Employers using the PERM process prior to sponsoring foreign workers for green cards:
    • Modernizing the process, including the possibility of expedited, premium processing
    • Identifying demonstrated shortages and surplusages

Building on the existing Deferred Action for Childhood Arrivals (DACA) program, through which young adults brought to the U.S. as children and lack status, the administrative relief plan has the following provisions.

  • Deferred Action for Parents (DAP).
    • Requirements for the parent
      • Have a U.S. citizen child (of any age); or
      • Have a lawful permanent resident child (of any age);
      • Arrived in the U.S. by January 1, 2010;
      • Have been continuously present in the U.S. since January 1, 2010;
      • Pass background checks;
      • Pay taxes (though evidence of payment of back taxes is not required).
    • Relief
      • Eligible to apply for deferred action, which will be granted for a 3-year period and can be extended.
      • Work authorization comes with the DAP approval.
    • Timing
      • The process should be available by Spring 2015.

 

  • Expansion of Deferred Action for Childhood Arrivals (DACA).
    • Requirements for the applicant
      • Arrived in the U.S. before turning 16 years old;
      • Arrived in the U.S. by January 1, 2010;
      • Have been continuously present in the U.S. since January 1, 2010;
      • Pass background checks.
    • Relief
      • Eligible to apply for deferred action, which will be granted for a 3-year period, and can be extended.
      • Work authorization comes with the DAP approval.
    • Timing
      • The plan is to have applications available by January 2015.

The administrative relief plan, a step in the right direction toward fixing our country’s broken immigration system, has the following limitations:

  • Neither DACA or DAP gives any immigration status.
  • Only temporary reprieve from deportation is available.
  • The programs do not grant green cards or citizenship.
  • They do not provide for any path to green cards or citizenship.
  • They are not available immediately.
  • Many undocumented persons will not be eligible.
  • The plan relies on the President’s prosecutorial discretion authority, recognizing that immigration enforcement is necessarily selective and that Congress funds capacity for about 400,000 deportations each year.

Nevertheless, the plan could expand the legal workforce by about four million.

Employers and businesses should be alert for opportunities to take advantage of the components of the plan.

On May 6, 2014, the U.S. Department of Homeland Security (DHS) officially announced that the United States will offer employment authorization to H-4 spouses of H-1B specialty occupation workers, under certain conditions.

Historically, H-4 spouses of H-1B workers have not had the right to work in the United States, although they have been able to legally reside in the United States and enroll in U.S. schools during the period of H-1B approval.  Many spouses in H-4 status become eligible to apply for U.S. employment authorization when the H-1B principal is sponsored for Lawful Permanent Resident status by a U.S. employer.  However, due to quotas restricting the number of employment-based green cards issued each year, many H-4 spouses (especially from India and China) must wait for many years after such sponsorship before they can apply for employment authorization.  The new H-4 provisions appear targeted to benefit these individuals.

Eligibility for H-4 employment authorization is tied to the principal H-1B worker.  H-4 spouses will be eligible to apply for employment authorization if their H-1B worker husband or wife:

  • Is the beneficiary of an approved I-140 filed by a U.S. employer; or
  • Has been granted an extension of H-1B status beyond the six-year limit based on the American Competitiveness in the Twenty-first Century Act of 2000 (Public Law 106-313).

H-4 employment authorization application fees, forms and processes will be clarified through proposed regulations, which DHS has promised to release soon.  As of now, it is not clear when DHS will begin receiving and processing such applications.

This new opportunity for H-4 spouses represents DHS’s recognition of the potential value that spouses of skilled foreign workers bring to the U.S. economy.  Many spouses in H-4 status are themselves professionals or would-be entrepreneurs, but are unduly prevented from entering the U.S. workforce due to visa quota backlogs.  DHS Deputy Secretary Alejandro Mayorkas has called the new H-4 employment rules an effort to “retain and attract world-class talent … [to] ensure [the United States] do[es] not cede the upper hand to other countries competing for the same talent.”

Click here to read a copy of DHS’s press release regarding H-4 employment authorization.

April 1, 2014, is the first day USCIS will accept H-1B petitions for quota/cap-subject cases for FY 2015, commencing October 1, 2014.  Only 65,000 H-1Bs are available nationwide per year for new jobs for foreign workers requiring Bachelor’s degrees, and only 20,000 for those requiring Master’s or advanced degrees. With demand for H-1B workers high, the quota likely will be filled quickly, leading USCIS to conduct a computer-generated random selection process, known as the ” lottery,” to randomly select which of cases will be receipted and adjudicated under the cap.  Information gleaned from USCIS regulations and recent press release postings yields a few tips:   

  • USCIS expects to receive a high volume of H-1B petitions this year. 
  • The quota is likely to be exceeded in the first few days of April.
  • Regulations require USCIS to accept petitions received the first five business days of April.  With April 1st a Tuesday, the fifth business day will be Monday, April 7, meaning petitions must be sent by Saturday, April 5.
  • Initial review will sort out multiple or duplicative H-1B petitions filed by an employer for one employer.  Regulations require USCIS to deny or revoke those multiple or duplicative petitions that an employer files for the same H-1B worker, and they will not return or refund the filing fees.
  • Master’s cap petitions will be sorted from non-Master’s cases and subjected to the random process to select the 20,000 that will be processed. 
  • All cases not selected as part of the U.S. Master’s lottery will be entered into the bachelor’s cap lottery, in which 58,200 cases (65,000 minus 6,800 carved out for Chile and Singapore H-1Bs) will be subjected to the random system to select those that will be adjudicated. 
  • Rejected petitions will be returned to the attorney or employer along with the filing fees (except for multiple or duplicative filings by an employer for an employee).
  • For H-1B cap petitions accompanied by the premium processing fee – an extra $1225 USCIS filing fee – requesting processing within 15 days of filing, USCIS will delay the start of the 15-day period, possibly until Monday, April 28.
  • Employers probably will not know whether a petition has been accepted and made it through the lottery until processing has begun and USCIS sends a receipt notice, or until the attorney or employer receives the rejected petition.
  • Premium processing does not increase the change of being selected in the lottery, but may enable earlier notification of whether the petition was accepted or rejected.
  • Petitions filed without premium processing may take several months to process, but should be processed before October 1, 2014.
  • Because of the five-business-day rule, a petition that USCIS received on April 1, 2, 3, 4, or 7 has the same chance of being accepted and the same risk of being rejected as a petition sent on March 31.

In the unlikely event that the quota is not filled during the first five business days in April, then USCIS will continue to accept petitions day-to-day until the H-1B quota is reached.

A congressional immigration reform proposal passed its first test and was approved by the Senate Judiciary Committee on May 21, 2013.  Action on the bill had been expected before the Memorial Day break, but not so much sooner than the self-imposed deadline. 

The Committee reached a key compromise related to H-1B specialty occupation workers, with the following provisions: 

  • H-1B numbers would increase, from 65,000 per year to a range of between 110,000 and 180,000.
  • Filing fees for H-1B petitions would increase substantially.
  • Employers must recruit U.S. workers but need not offer jobs to all U.S. workers who are qualified.
  • H-1B workers may not be paid less than U.S. workers with the same position, and employers dependent on the foreign workers must pay higher than Level 1 wages to the H-1B workers.
  • Outsourcing through job shops who employ H-1B workers is restricted.

The legislation would treat foreign graduates with U.S. science, technology, engineering or math (STEM) degrees more favorably than those with other degrees, allowing them to skip the H-1B process and apply directly for permanent residence and a green card.

The bill contains widescale changes to immigration law going well beyond H-1B employment.  The next step will be debate of all the provisions by the full Senate   The House has just begun to start releasing its immigration reform bills.

Following are some highlights for the comprehensive bipartisan immigration reform bill introduced in the Senate on April 17, 2013.

H-1B Cap Raised, but New Restrictions on Temporary H-1B Workers.  In an effort promote market-based limits, the annual H-1B cap would be raised from 65,000 to 110,000, and would be adjustable upwards to as high as 180,000 per year if employer requests for H-1B workers rises.  The 20,000 additional H-1B slots currently available for U.S. Master’s degree graduates would be increased to 25,000, but would be limited to U.S. Master’s graduates in science, technology, engineering and math (STEM) fields only. 

However, the bill would also impose onerous new obligations and restrictions on U.S. employers hiring H-1B workers, reportedly including the following:

  • Higher wage obligations
  • Mandatory recruitment of U.S. workers and online posting for H-1B positions
  • Increased filing fees and limits on H-1B hiring for “ H-1B dependent employers” (more than 30 % of a company’s workforce are H-1B or L-1 employees)

Entrepreneur Start-up Visa.  The proposal offers up to 10,000 new temporary visas to entrepreneurs who create at least three jobs, raise at least $100,000 from angel investors, venture capitalists or other investment groups, and generate at least $200,000 in revenue.

Retirees and Snowbirds.  There is a “retiree visa” for purchasers for residences with $500,000 cash or more and also a provision for Canadian snowbird homeowners and renters. 

New Employment Eligibility Verification Obligations for U.S. Employers.  Within five years after the bill’s passage, all U.S. employers would be required to enroll in the E-Verify system.  Large employers would be required to enroll sooner, and mandatory enrollment would be phased in later for small businesses and certain industries (e.g. agriculture).  The bill would also incorporate “photo matching” into E-Verify screening for new hires, requiring employers to certify that the photograph on the identity document presented by the new hire exactly matches an identical photograph in the E-Verify system.

Merit-Based Point System.  A new merit-based option would make green cards available based on education, employment, length of residence, and other considerations.

Re-Allocation of Immigrant Visa Quotas to Clear Backlog.  The bill proposes various reforms to the current employment- and family-based immigrant visa quota system designed to reduce and eliminate visa processing backlogs.  Significant changes include, but are not limited to, the following:

  • Derivative spouses and children of principal immigrants in both employment- and family-based categories would be classified as “immediate relatives,” and no longer be counted toward numerical limits.
  • Many employment-based immigrants would no longer be counted toward annual numerical limits, including all EB-1 categories (extraordinary ability, outstanding professors/researchers, and multinational executives/managers), doctoral degree holders in any field, and some physicians.
  • EB-2 classification would be expanded to include a new sub-category for foreign nationals who earned U.S. Master’s or higher degrees in STEM fields during the past five years, and have an offer of employment in a STEM field.
  • Per-year numerical limits on EB-2 and EB-3 visas would be increased.

W Visa for Lower-Skilled Workers.  The bill proposes a new nonimmigrant, temporary worker category, a W visa for workers to perform services or labor.  It will require registration and certification:

  • The employer must register.
  • The position must be registered.
  • The worker must request and receive certification for W status. 

Employers will need to recruit for U.S. workers for 30 days.  20,000 W visas would be available starting in 2015, with the number increasing to 75,000 in 2019.

 “Blue Card” for Agricultural Workers.  Agricultural workers would be eligible for a new type of legal status work authorization card: a blue card.  Ag workers would not be tied to a single employer.  Wages would be set by the Department of Agriculture, instead of the Department of Labor.  The ag workers must have done the following:

  • Worked in the U.S. ag industry for at least 100 days in the two years prior to December 31, 2012
  • Pay a $400 fee
  • Paid their taxes
  • Have no criminal record

The bill caps the blue cards at about 112,000 for the first five years.  Blue card holders could be eligible for permanent legal residency in five years.

Registered Prospective Immigrant (RPI).  Current undocumented noncitizens could apply for “registered prospective immigrant” (RPI) status with valid work authorization under the following circumstances:

  • Presence in the U.S. since December 31, 2011
  • Passing a background check
  • Paying a $500 penalty fee
  • Paying taxes

RPI status would be available for six years and could be renewed for another $500.  Permanent resident status would be available after payment of an additional $1,000 fee and the following:

  • The border is sufficiently secure.
  • All individuals who are waiting for green cards when the bill is enacted have been processed, that is, those in the country without authorization to the “back of the line.”
  • The RPI possessed the status for 10 years.
  • Tax payments are up-to-date.
  • The RPI demonstrates knowledge of US civics and English.

Path to Residency or Citizenship

The bill does not provide a direct route to U.S. citizenship for those adjusting from unlawful status, but it does not prohibit applying for citizenship.