Earlier this year the United States Citizenship and Immigration Service (USCIS) announced that it would suspend premium processing for all H-1B petitions.  The suspension was to allow USCIS to reduce its backlog of non-premium processing cases.   On September 27, 2017 the USCIS Service Center Operations informed the American Immigration Lawyers Association that it is “on track to resume premium processing for all H-1B petitions on or before October 3, 2017.”

Premium processing is a service offered by USCIS that promises a response in 15 calendar days.  A petitioner may submit its petition for a nonimmigrant employee to USCIS with a request for premium processing on Form I-907 and a fee of $1,225.  In 15 days USCIS will respond with an approval, a denial, or a request for additional evidence.  Premium processing is not available for all petition types, but has historically always been available for H-1B petitions.

On July 24, 2017 USCIS announced that it had resumed premium processing only for one type of cap-exempt H-1B petition.  Employers anxiously awaited similar news for all types of H-1B petitions.

Note: practically speaking, the suspension of premium processing had a limited legal affect on several types of H-1B cases.  H-1B cap cases were not affected significantly because those employee-candidates were not eligible to begin work pursuant to H-1B status until October 1, 2017.  Most cap cases were approved well before October 1 without premium processing.  Additionally, if an employee is already in H-1B status pursuant to a petition filed by one employer, he or she can usually “port” his or her H-1B status to a new employer.  This doctrine of H-1B portability allows the employee to start working for the new company as soon as the new company files its H-1B petition for that employee.  Since the new company does not need an approval notice — only to file the petition — the suspension of premium processing did not greatly affect the employee’s eligibility to start working.  However, in each of these cases, both employers and employees preferred to rely on the assurance afforded with a 15-day response.  Moreover, USCIS issues an emailed Receipt Notice for premium processing cases, which allows an employee to “port” his or her status to a new employer faster — often in one to three days.  Without premium processing, employers must wait for the paper receipt notice to arrive as proof that the new company has properly filed a new H-1B petition.  Paper receipt notices may arrive in one to three weeks (versus one to three days).  There are other forms of proof and you should contact yoru Immigration counsel to discuss special circumstances.

We are currently awaiting an official announcement and further details from USCIS.  We recommend employers, petitioners and interested parties check the USCIS website www.uscis.gov.

 

For decades versions of The DREAM Act were proposed in Congress with the intent of providing some relief for young people who entered the United States without express authorization as children, and who met certain requirements.  These “dreamers,” however, could get no relief as the proposed bills never passed.  On June 15, 2012 the Obama Administration published a memorandum announcing the DACA program, which provided relief the Dream Act could not.  On September 5, 2017, after urging by the Trump Administration, the Department of Homeland Security officially rescinded the DACA program.

What Is the DACA Program?

Deferred Action for Childhood Arrivals (DACA) is a program that provides temporary relief from deportation to certain under-documented individuals who were brought to the United States as children.  To be eligible for DACA an applicant must have:

  1. Been 30 or younger on June 15, 2012;
  2. Come to the United States at age 15 or younger;
  3. Continuously resided in the United States from June 15, 2007 through the date of their DACA application;
  4. Been physically present in the United States on June 15, 2012;
  5. Been in high school, graduated from high school or received a GED; or have been an honorably discharged veteran of the U.S. Coast Guard or armed forces;
  6. Been convicted for no felonies, no significant misdemeanors, and no more than three other misdemeanors – nor otherwise posed a threat to national security; and
  7. Had no lawful status on June 15, 2012.

DACA applicants were required to affirmatively apply for this benefit and the DHS reviewed and adjudicated each application.  Foreseeably, many of those who qualified for DACA feared that providing their information – including their address where other under-documented family members may have lived – to the government could lead to a deportation in future, even if that is exactly what DACA promised to protect against.  Many applicants waited until a year after the program’s inception to apply.  Today, nearly 800,000 people have been approved for DACA.

What Benefits did DACA Provide?

A DACA approval did not provide a path to citizenship, nor did it grant asylum or refugee status.  In fact, the government has been clear that recipients of DACA are technically still unlawfully present in the United States.  “Deferred action” means exactly what it implies:  the government may temporarily defer the action of deporting qualified applicants.  The 2012 executive action was an effort to allocate the enforcement resources of the Department of Homeland Security (DHS) more effectively.  If DHS officers were not arresting and deporting children, college students, and – otherwise – law abiding young adults, then they could focus on dangerous criminals who were in the United States without authorization.

In addition to a grant of deferred action from deportation, a DACA approval meant that the recipient could apply for authorization to work and travel.  The importance of work authorization meant that the dreamers could “come out of the shadows” to apply for a social security card, get a driver’s license, accept employment, and pay taxes.

What Has Changed?

On September 5, 2017 the Trump Administration announced the recession of the DACA program.  On that same day President Trump released a statement arguing that only Congress, and not the Executive branch, should  grant DACA-related benefits.  The President gave Congress a deadline of six months, until March 5, 2018, to pass a replacement bill.

How Does This Affect Current Workers and Travelers?

DHS released a series of Frequently Asked Questions and answers when it rescinded DACA.

After September 5, 2017 the DHS will no longer accept new applications for the DACA benefit.  DACA recipients with current work authorization may continue to work until their current employment authorization document (EAD) expires.

Until October 5, 2017, DHS will continue to accept renewal applications for anyone whose DACA or EAD expires between September 5, 2017 and March 5, 2018.  Those renewal applications are expected to be approved for two years.  DHS will still accept applications to replace EADs that have been lost, stolen or destroyed.

DHS will accept no new applications for travel authorization (called “Advance Parole”).  Pending applications will be closed (“denied”) and the application fee will be returned.  DHS will, however, recognize previously-granted travel periods so persons who are outside the United States with Advance Parole under DACA are urged to return to the U.S. before the authorization expires.  DHS has always maintained that Advance Parole does not guarantee admission into the United States, and the government may terminate or revoke that benefit at any time.  Therefore, even persons who have unexpired Advance Parole should carefully consider trips outside the United States.

Will Persons with Expired DACA be Deported?

Persons with unexpired DACA maintain deferred action protection and should not be arrested or deported by DHS unless a new criminal action or other factor makes that person ineligible for DACA.

DHS also states that information provided in DACA applications will not be proactively provided to the enforcement agencies of DHS (Immigration and Customs Enforcement or “ICE” and Customs and Border Protection or “CBP”) for the purposes of initiating deportation proceedings.  However, if ICE requests the information and the person meets the requirements for deportation, the DACA information may be provided to ICE.

What Options are Available for DACA Recipients?

Persons with expiring grants of DACA or EADs may reach out to their employers and immigration attorneys to review eligibility for the EAD extension or other forms of relief from deportation.

The U.S. Supreme Court decided that the United States can ban entry by persons from Muslim countries, partially and temporarily upholding the Executive Order travel ban. Travelers from Iran, Syria, Sudan, Libya, Somalia, and Yemen are barred from coming to the United States unless they have a bona fide, well-documented connection to a U.S. person or entity. The timeframe appears to be from June 29, 2017 for 90 days to September 27, 2017. For refugees, the timeframe appears to be 120 days, to October 27, 2017.

There does not appear to be any basis for revoking previously approved visas.  However, the ruling could cause confusion in particular for those with plans to come to the U.S. on tourism or for business visits.  B-1 and B-2 visa applications for business or tourism may be denied, and B-1/B-2 travelers may be refused entry at U.S. airports and ports of entry if the Immigration Officer is not convinced the traveler meets the “bona fide connection” standard. But foreign workers from the countries with approved visas, such as H-1B workers; F-1 students; J-1 exchange visitors; K-1 fiancés ; L-1 intracompany executive, manager, and specialized knowledge transferees; O-1 extraordinary ability personnel; P-1 performers; R-1 religious workers; and E-2 investors; should be allowed entry. It is unclear how dual citizens, such as dual Iranian-Canadian citizens will be treated under the ruling.  Green card holders should not be affected.

The Supreme Court issued the ruling on June 26, 2017, and will hear full oral argument in the Fall of 2017.

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.

UPDATE:  In a landmark decision on February 9, 2017, the Ninth Circuit Court of Appeals halted the Executive Order travel ban imposed on persons from predominantly-Muslim countries.  The Court upheld the temporary restraining order from Judge James Robart’s February 3, 2017, ruling in the lawsuit Washington v. Trump.  As a result, the travel ban is not in force. 

However, some heightened scrutiny still exists in the interest of security.  Persons with concerns about departing from or returning to the U.S. still may want to contact an immigration lawyer prior to travel.  However, citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, or with Muslim backgrounds, no longer should be subjected to unduly excessive questioning during visa processing or upon entry to the United States.   

Following is the history of the Executive Order and continuing implications. 

On Friday, January 27, 2017, President Trump issued Executive Orders barring admission into the United States from seven predominantly Muslim countries, suspending all refugee admissions, and barring entry by Syrian refugees. Though no countries are listed on the Order, the intent was the ban on entry into the U.S. by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen by any persons “from” those countries with nonimmigrant or immigrant visas or status or as refugees.

Multiple lawsuits challenged the Order.  On January 28, 2017 federal courts in several districts issued stays limiting the Order, but the Department of Homeland Security through Customs & Border Protection (CBP) is not fully complying with the stays at all airports and ports of entry.

However, on January 29, 2017, Homeland Security issued a statement, indicating that allowing lawful permanent residents to return to the U.S. is in the national interest, so long as there is no serious derogatory information, as determined on a case-by-case basis.

Overall, CBP and visa officers applied an extremely heightened level of discretion for foreign citizens from Muslim countries (beyond the seven listed), but persons who are allowed to board flights by an large have been allowed to enter the U.S.

Here is a summary of the impact:

Impact on U.S. Citizens

  • The Order does not specifically apply to U.S. born citizens or naturalized US citizens.
  • However, dual U.S. citizens from the 7 countries reported that CBP notified them that their Global Entry trusted traveler authorization is being revoked.

Departing the United States

  • To minimize the impact of the Order, it is advisable to avoid unnecessary travel outside the United States.
  • On January 31, 2017, the Department of State began the provisionally revoking valid visas previously issued to any affected nationals from the 7 countries.  A provisional revocation of a visa does not require the person to depart the U.S., and anyone who receives notification should contact an immigration attorney to discuss implications.  UPDATE: The State Department has started to reinstate the revoked visas.

Returning to the U.S. by Air

  • For persons currently outside the U.S., anticipate enhanced questioning on return, related to activities inside and outside the U.S. and related to family and friends.
  • In some countries, airlines were asking travelers from the 7 countries to sign agreements that if Homeland Security refused to allow them to enter the U.S., the person would agree to pay the return airfare (under existing agreements, the airlines – not the U.S. government or individuals – are liable to cover the cost).

Returning to the U.S. at a Land Border Crossing

  • Entry at land border crossings almost involves more questioning than flying into the U.S. The reason is that some screening occurs through the Advanced Passenger Information System (APIS) before boarding a flight, but the traveler must wait for the immigration officer at the land border crossing to conduct the screening.

Canadians

  • National Security Advisor Flynn advised that dual nationals of Canada are not prohibited from entering the United States and usually should be allowed to enter.

Green card holders returning to the U.S.

  • Green card holders from countries other than the 7 listed report little difference in the admission process from before the Order.
  • Green card holders from the 7 countries who are dual citizens of other countries (such as Canada and the UK) may be subjected to minimal additional screening.
  • Green card holders from the 7 countries are being subjected to additional screening, which may involve a few additional questions by the immigration officer in primary inspection at the entry booth, or the person may be sent to secondary inspection for more extensive questioning ranging from a few minutes to several hours.
  • Some immigration officers and airline representatives have asked green card holders to sign a form (I-407) to abandon permanent resident status and be allowed to enter the U.S. as a visitor.  Permanent residents should not sign a form or relinquish the green card without speaking to a lawyer.
  • UPDATE:  Persons from the 7 countries generally no longer are singled out.

Temporary, nonimmigrant visa travelers

  • Temporary visas holders (such as with H-1B, O-1, L-1, F-1 students, business visitors, tourists, and Canadians and Mexicans with TN status) from the 7 countries may be subjected to enhanced primary or secondary screening.  UPDATE:  Persons from the 7 countries generally no longer are singled out.
  • Those returning to work generally have less questioning that those entering for the first time.

Visa processing overseas

  • Some U.S. embassies and consulates abroad had allowed returning visa applicants to forego an interview under visa interview-waiver programs, i.e., the drop-box for visa renewals. This option no longer exists. Now, all visa applicants must attend an interview.  UPDATE:  Drop-box visa processing has resumed.
  • Persons from other countries attending visa appointments may end up stuck outside the U.S. for some time and be unable to return while waiting for the visa stamp, though this now is less likely to occur.
  • All U.S. embassies and consular posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Visa interviews for affected individuals are being canceled. The Department of State issued an urgent notice to citizens these countries, “please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please do not attend. You will not be permitted entry to the Embassy/Consulate.”  UPDATE:  Visa processing has resumed.

Questions on entry

  • CBP immigration officers at the Ports of Entry may ask travelers to provide social media access, such as contact for Facebook pages, Instagram accounts, etc. Such requests should be declined, as the information is not required.
  • For some travelers, a delay will result from a request to Headquarters in Washington, DC, to clear the person.
  • The Order was not directed to nationals of Saudi Arabia, Bahrain, Oman, Qatar, & UAE, nor to nationals of Bangladesh, Egypt, Indonesia, Morocco, Pakistan, Turkey or other Muslim-majority countries. But some citizens of those countries report being subjected to enhanced secondary screening.
  • The highest scrutiny is being applied to citizens of one of the 7 countries, using a passport issued by one of the 7 countries, and travelling to the U.S. from one of the 7 countries.

Impact on USCIS petition and application processing

  • USCIS reportedly has ceased processing of all immigration petitions and applications for beneficiaries of the 7 countries, for forms that begin with an “I,” (I-130, I-765, etc.), but are processing forms that begin with “N” (such as N-400 naturalization applications).  UPDATE:  Processing has resumed.

Removal or questioning of persons in the U.S.

  • Persons with valid status in the United States are not subject to removal under the Executive Order.
  • Immigration officers who ask to enter the workplace or a home to ask for information about immigration in most cases may be refused if they lack a warrant.

Access to Counsel

  • A person who would like legal representation should ask for a “G-28” while in secondary at a Port of Entry, and even without a G-28, should state that they would like legal representation and to be able to speak to a lawyer and should not be dissuaded by an immigration officer saying the person is not entitled to counsel.

With no advance warning, U.S. Citizenship and Immigration Services (USCIS) revised more than 40 forms on the Friday of the 2016 December long holiday weekend. The forms all have an effective date the same day the notice was posted on its website, December 23, 2016. For most of the forms, no previous editions are acceptable, except for the Form I-129, Petition for Nonimmigrant Worker.  However, USCIS has indicated that it may apply discretion when receipting forms sent around that date, rather than rejecting them outright. Affected forms include the following:

I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

This change will affect green card renewals, business immigration cases, family immigration cases, work authorization applications, citizenship applications, and other types of cases. USCIS did not disclose the reason for the unanticipated change. Persons with concerns about impact on immigration status should contact an immigration attorney.

Filing fee increases for a number of the forms became effective December 23, 2016, as well, but USCIS had given prior notice of the fee increase.

UPDATE:  On December 29, 2016, USCIS announced a grace period for accepting older versions of the forms until Tuesday, February 21, 2017.  However, Monday, February 20, 2017, the day before the new forms are required, is a federal holiday – President’s Day. We recommend treating Thursday, February 16, 2017, as the last effective day for the grace period.  Older versions of the forms sent February 17 or thereafter without the date 12/23/16 at the bottom likely will be rejected (the exception is the Form I-129).

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.

Chinese citizens who would like to travel to the United States now can have a visa valid for up to 10 years.  Previously, the limit was one year.  During President Obama’s November 2014 visit to China, the two countries agreed to reciprocal expansion of the timeframe.

This does not mean a Chinese citizen can remain in the United States for 10 years.  A visa allows a person who comes to a U.S. port of entry at an airport or border crossing to “knock on the door.”  Immigration officers with U.S. Customs and Border Protection (CBP) under the Department of Homeland Security determine the length of stay for each visit.  Immigration regulations allow for business visitors with B-1 visas and tourists with B-2 visas to remain for up to one year, but the more typical period of stay allowed is 90 days or six months, or a period needed to accomplish the purpose of the visit.  However, a 10-year visa eliminates the need for annual visits to the U.S. Embassy or Consulate for visa renewals for subsequent travel to the United States.

Student F-1 visa and exchange visitor J-1 visa validity is increased from one to five years.  Even with a five-year visa, an exchange visitor generally only can remain up to 18 months, plus a grace period of 30 days after the status ends.  Students may remain in the U.S. for the period of time needed to complete the study, plus one year optional practical training after completing a degree, plus a 60-day grace period.

Visitors with B-1 or B-2 status are not permitted to work for a U.S. employer.  Students and exchange visitors have work options that must be closely tied to the study or exchange purpose of the visa.

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.