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Immigration View

Navigating Complex U.S. Immigration Laws

H-4 EAD Applications Accepted Beginning May 26, 2015: Are you that “certain spouse”?

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Priority Dates

Are you that “certain someone”?  That “certain spouse” of an H-1B worker who will be eligible for H-4 work authorization?  Not sure?  Here’s the scoop.

At long last, on Wednesday, February 25, 2015, the US Department of Homeland Security (DHS) published a Federal Register Notice captioned, “Employment Authorization for Certain H-4 Dependent Spouses; Final Rule”.   Per the much-awaited Notice, on May 26, 2015 (NOT earlier), USCIS will begin accepting applications from eligible applicants in H-4 status, but H-4 work authorization will not be available to all who hold H-4 status.  The chosen few, those “certain spouses” who will be eligible for H-4 work authorization include:

  • An H-4 spouse of an H-1B worker with an approved I-140, or
  • An H-4 spouse of an H-1B worker who has been granted a 7+ year extension of H-1B time pursuant to AC21 Sections 106(a) and (b).  (Note that an H-4 spouse of an H-1B worker granted a 7+ year extension under AC21 Section 104(c) would be covered under the first bullet point.)

So, not all H-4 dependent spouses will qualify to apply for an H-4 EAD (employment authorization document).  H-4 children are also ineligible.

An H-1B worker who is running out of H-1B time may want to consider whether it makes sense to change to H-4 status and seek work authorization—that is, if married to an H-1B worker who would enable the work authorization criteria to be met. Fortunately, there is a provision for concurrent filing of the H-4 application and the EAD application.

Typically, it takes about 90 days from the date of USCIS receipt of an EAD application for the EAD card to be issued.  It’s not clear whether it will take longer given that there is likely to be a very large number of filings seeking H-4 work authorization.

Careful consideration and strategizing must be undertaken to determine eligibility, the best course of action, and timing.  Please feel free to contact us if you need assistance.

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Ms. Wadhwani is a Partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

Employment Authorization will be available for Certain H-4 Spouses as of May 26, 2015

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, Non-Immigrant Visas (other than Es, Ls and H-1B)

Today, February 24, 2015, U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced that, as of May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status will be eligible for employment authorization. The Department of Homeland Security (DHS) has amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

According to Rodríguez, finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” Rodríguez said. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

DHS reports that it expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. It is anticipated that this change will reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them and, further, also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

For more information, see USCIS’ news release here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Expanded DACA Applications NOT Accepted: Implementation Delayed

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, Immigration Accountability Executive Action (Obama 2014)

There is bad news for those hoping to avail of expanded DACA eligibility.  You may recall that President Obama’s Immigration Accountability Executive Action (IAEA) set the stage for several million people to be eligible for DACA employment authorization.   USCIS had announced plans to begin accepting employment card applications from these newly eligible applicants beginning today.  On February 17, 2015, yesterday, a judge in South Texas issued a preliminary injunction which prevents (at least temporarily) the Immigration Service’s planned implementation of the DACA expansion.  For more about DACA expansion, see Robert Whitehill’s blog post at http://immigrationview.foxrothschild.com/general-immigration-news-and-updates/the-first-arrival-daca-expansion.

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Ms. Wadhwani is a partner in the Pittsburgh office of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com

 

The first arrival : DACA expansion

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, Immigration Accountability Executive Action (Obama 2014)

Note added on February 18, 2015:  Yesterday, a judge in South Texas issued a preliminary injunction which prevents (at least temporarily) the Immigration Service’s planned implementation of the DACA expansion. 

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DACA expansion, the first part of the President’s Executive Action goes live on February 18th.  USCIS has issued new forms, instructions , guidance and FAQs.  Beginning next week, more undocumented immigrants who came as children are eligible to apply for Deferred Action.  DACA has been expanded , but it certainly is not for everyone. Here are the broad guidelines.

 To be eligible , the person must :
*have come to the US before his/her 16th birthday

*been continuously resided in the US at least from September 1 , 2010 to the present

*been present in the US on June 15, 2012 and on have had no lawful status on June 15, 2012

*be currently in school , graduated from High School, have a GED or been honorably discharged from the US armed forces ,AND

*be free from any felony,  “significant misdemeanor” , more than 3 misdemeanor convictions and pose no threat to public safety or national security.

 Each case is determined on a case by case basis after submission of a new form , form I-821D,  with an extensive documentary package proving each of the elements.  The application may be accompanied by a request for employment authorization, form I-765WS.  The filing fee for the I 765WS is  $465.

 The grant of Deferred Action for Childhood Arrivals is good for a period of 3 years and may be renewed.  It is not for everyone, but the expanded program is calculated to include another 500,000 beneficiaries. 

 USCIS provides a great deal of information on DACA at www.uscis.gov , the FAQs are found at  www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process

Immigration Executive Action: Modernizing Legal Immigration

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, Intrcompany Transferees (L-1 and Permanent Residence), Non-Immigrant Visas (other than Es, Ls and H-1B), Priority Dates

Much has been reported regarding President Obama’s Immigration Accountability Executive Action (IAEA). And, of course, there is still uncertainty regarding when and exactly what measures will be implemented by the Immigration Service.

With so much speculation on the topic, and an abundance of DACA and DAPA information, it’s not particularly easy to understand what the Immigration Executive Action contains relating to the country’s legal immigration system. Below is a quick summary of USCIS’s January 29, 2015, notice [http://www.uscis.gov/immigrationaction].

In the notice, USCIS indicated that it will work toward to goals of:

• Using all available immigrant (i.e., greencard) visa numbers when there is sufficient demand.

• Simplifying the Visa Bulletin system with regard to determinations of visa number availability.

• Clarifying I-485 portability (i.e., adjustment portability) to remove uncertainty relating to job mobility/career progression of the individual worker.

• Clarifying the National Interest Waiver I-140 (NIW I-140) greencard standard for foreign inventors, researchers and founders of start-up companies.

• Providing parole eligibility to certain inventors, researchers and founders of start-up companies who are not eligible for the NIW I-140, but who:

o Have been awarded substantial financing from US investors, OR

o Demonstrate promise of innovation and job creation through new technology development OR through the pursuit of “cutting-edge research”.

• Finalizing H-4 work authorization for the spouse of an H-1B worker whose greencard paperwork is in progress.

• Expanding and extending Optional Practical Training (OPT) for certain foreign students.

• Consolidating and clarifying L-1B Specialized Knowledge employee guidance to improve consistency in adjudications. Using these as a basis, there is great potential for an improved immigration system.

For now, we eagerly await additional details from USCIS regarding the provisions.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP. She may be reached at cwadhwani@foxrothschild.com.

 

PERM Statistics published by DOL

Posted in General Immigration News and Updates, Immigrant Visas, PERM Labor Certification, Permanent Residence

The Department of Labor has provided some updates for the Fiscal Year 2014  on the PERM program (as of 12/31/14), including number of applications received, top occupations, work site states, industries, visa classifications, country of citizenship, and minimum educational requirements, as well as number of certified, denied, and withdrawn applications.

DOL PERM Stats 2014

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

USCIS Notice Details Immigration Executive Action Steps

Posted in General Immigration News and Updates

USCIS has issued a notice about the steps that it is taking to implement President Obama’s immigration executive action with regard to deferred action, provisional waivers and the modernization of legal immigration.  HOLD ON!  Nothing is yet in place.  The closest to launch are the DACA and DAPA provisions.  USCIS says that it will accept enhanced DACA (Deferred Action for Childhood Arrivals) requests after February 18, 2015. 

 The grant of DACA deferred action and employment authorization will be increased from 2 to 3 years for undocumented immigrants who:

 *entered the US before age 16 ,

 *have lived in the US continuously since January 1, 2010 (the earlier program had a June 15,2007 cut off)

 *are of ANY age (the earlier program was for those 31 or younger) and

 *meet the standards for USCIS discretionary grant of DACA.

 *there are other details but these are the headlines.

 DAPA is deferred action for parents of US citizen or permanent resident children.  USCIS says this program, which could benefit more than 4 million people, will be available in May 2015.  The details are still not published but these parents would be able to request deferred action and employment authorization, if they:

 *have lived in the US continuously since January 1, 2010

 *had a qualifying child on November 20, 2014

 *are not an enforcement priority and

 *meet the other standards required for this discretionary largess.

 The initiatives that will modernize our immigration system look very encouraging, but the USCIS immigration executive action Notice answers the question of When? with “Upon issuing necessary guidance and regulations.”   At least the programs for the undocumented are progressing from the President’s November 20, 2014 announcement into action.

See : www.uscis.gov/immigrationaction.

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Robert S. Whitehill is Chair of the Immigration Group at Fox Rothschild LLP.  He may be reached at rwhitehill@foxrothschild.com.

National Visa Center Now Handling Nonimmigrant Visa Inquires

Posted in Consular Issues, General Immigration News and Updates, Permanent Residence

National Visa Center (NVC) was previously the domestic point of contact for all immigrant (i.e. permanent residence or ‘green card’) visa cases being processed through a U.S. Embassy or Consulate outside of the United States.  Beginning on Monday, January 12, 2015, the NVC is also the point of contact for all domestic inquiries regarding nonimmigrant visa cases as well.

The Visa Office reports that it choose to designate the NVC as the single point of contact for all visa matters at Consular Posts worldwide in order to improve the efficiency and consistency of responses to the public,

Consular posts will still accept inquires on individual visa cases and Legalnet will remain active and respond to inquiries from attorneys seeking advisory opinions on the interpretation or application of U.S. Immigration Law.

The general public may contact NVC by email at AskNVC@state.gov. Please note NVC will only answer the routine questions about case status and provide general information about the visa process.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The I-Squared Act of 2015: Proposed H-1B Changes

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers

H-1B cap season is upon us, but will the H-1B cap be increased?  You may have heard of the “I-Squared Act of 2015” (aka the “Immigration Innovation Act of 2015” or S. 153), introduced in the Senate in mid-January.  Like the President’s Immigration Executive Action, the I-Squared Act contains a variety of proposals meant to improve the country’s immigration system.  Not all of the provisions relate to H-1B workers, but that’s what I’ll address here.

The Bill begins with a section captioned, “Market-Based H-1B Visa Limits”.   This Section describes a system which would provide for increased H-1B numbers depending on demand.  The H-1B cap would increase from the current 65,000 (+20,000) to 115,000 (but not more than 195,000).  Demand would be assessed on a rolling basis beginning 46 days after the first date when H-1B filings are permitted, then again on the 61st day and so on.  That should certainly alleviate the distress of cap-subject employers…if the Bill were to ultimately become law.

Further, the Bill proposes a 60-day grace period for the H-1B worker when the employment relationship ends (whether voluntarily or involuntarily before the ending validity date of the H-1B petition approval).

Of note, the Bill also calls for work authorization for the spouse of an H-1B worker.  This raises another question:  When will we hear more regarding the H-4 work authorization that is already under consideration?

Will the Senate Bill become law?  That seems highly unlikely, and particularly not in time for this year’s H-1B cap season.  So for now, cap-subject employers intending to petition for H-1B status for cap-subject foreign workers should be prepared as usual.

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Ms. Wadhwani is a partner in the Pittsburgh office of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com

Could Immigration Executive Action Affect Foreign Physicans?

Posted in Uncategorized

By Catherine V. Wadhwani

For a summary of my thoughts regarding whether President Obama’s Immigration Executive Action could affect foreign physicians, please see my article, “Immigration Executive Action:  Will it affect physicians?” as published in the January 2015 edition of the Bulletin, which is a publication of the Allegheny County Medical Society.

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Ms. Wadhwani is a partner in the Pittsburgh office of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.