Search results for: h-4 ead

It has been widely reported, including by the American Immigration Lawyers Association, that on February 20, 2019 the Department of Homeland Security (DHS) sent a proposal to the Office of Management and Budget (OMB) as per normal regulatory procedure to rescind the H-4 spouse employment authorization document (H-4 EAD) regulation. Reportedly, approximately 90,000 H-4 EAD-holders will be affected if the rule is rescinded.

According to procedure, OMB will first review the DHS proposal, the text of which has not yet been released to the public. The proposed rule will then appear in the Federal Register. After publication in the Federal Register, the public comment period is typically 30-60 days. Thereafter, DHS must review the feedback from the public before issuing a final regulation.

If not already done, it would be prudent for those with H-4 EAD work authorization to contact an attorney right away to consider other work-authorized immigration options. With the time for filing H-1B cap petitions quickly approaching, the sooner this is done the better or the possibility of an FY2020 H-1B cap petition may be foreclosed to H-4 EAD-holders for whom it would otherwise be available.

When the proposed rule is published in the Federal Register, we will provide further information.

 

Mark D. Harley is a Partner of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Mark at 412-391-2418, or mharley@foxrothschild.com.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Catherine at 412-391-1334, or cwadhwani@foxrothschild.com.

Robert S. Whitehill is a Partner and the Immediate Past Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Bob at 412-394-5595, or rwhitehill@foxrothschild.com.

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.

 

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.

On November 11, 2021 American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown, announce the historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.

In short, these structural changes for H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization are as follows:

For H-4s:  Within 120 days of the Effective Date, USCIS will amend the receipt notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.

For L-2s:  USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes.

In connection with this, today, November 12, 2021, USCIS issued updated policy guidance to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. USCIS is updating its interpretation and implementation of 8 CFR 274a.13(d) to provide that certain H-4, E, or L dependent spouses will qualify for the automatic extension provided under this regulatory provision if certain conditions are met. Guidance is effective 11/12/21 and comments are due by 12/13/21.

Simultaneously, USCIS is rescinding the 2002 Legacy Immigration and Naturalization Service memorandum entitled, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition” (2002 INS memorandum).

This policy guidance, contained in Volume 10 of the Policy Manual, is effective immediately and provides:

  • certain H-4, E, or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly filed an application to renew their H-4, E, or L-based EAD before it expires, and they have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable.
  • the automatic extension of the EAD will continue until the earlier of: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD.
  • the following combination of documents evidence the automatic extension of the previous EAD, and are acceptable to present to employers for Form I-9 purposes: Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L), Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and the facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).
  • E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD. (Until such time as USCIS can implement changes to the I-94 to distinguish E and L spouses from E and L children, E and L spouses will still need to rely upon an EAD as evidence of employment authorization to present to employers for completion of Form I-9. Until the notation on Form I-94 issued to E and L dependent nonimmigrants is revised, Form I-94 solely indicating E or L nonimmigrant status is insufficient evidence of employment authorization under List C of Form I-9.)

It is anticipated that USCIS will issue additional guidance as further steps to implement the terms of the settlement are undertaken, however, it clear that USCIS intends for H-4 dependents who are in the process of their H-4 EAD documents and meet the criteria above are eligible to immediately benefit from the automatic extension provision.  We will continue to update you as information becomes available.

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The Department of Homeland Security (DHS) is making “structural changes” to work authorization for H-4 and L-2 spouses.  The changes result from an agreement settling litigation brought against the agency by the American Immigration Lawyers Association (AILA) and others,

Pursuant to the settlement agreement, the automatic extension provision will apply to an H-4 spouse of an H-1B worker when their EAD (employment authorization document) extension application is timely filed.  The auto-extension of up to 180 days would only apply while the applicant is in H-4 status (i.e., until the H-4’s current I-94 expiration date) or 180-days, whichever is earlier. A decision on the extension application (approval or denial) would also supersede the automatic extension.  As such, the potential benefit of this change will apply differently depending on the circumstances, which must be considered on a case-by-case basis.

The auto-extension provision applies to an L-2 spouse too, but it’s not clear whether it is meaningful in the L-2 context  because the settlement agreement also provides that an L-2 spouse will be authorized to work “incident to status”.  This means that an L-2 will not need an EAD as evidence of work authorization.  Instead, an L-2 will receive an I-94 that includes an annotation indicating that they are the spouse of an L-1 (rather than an L-2 child).  It’s not clear when the agencies will have the capability to annotate I-94s in this manner and what interim measures will be taken until then.

Although clarification is needed regarding implementation of the settlement agreement, these changes are momentous.  Delays in the issuance of EAD cards have been felt by US employers and by H-4 and L-2 employees who have sometimes terminated employment relationships that would otherwise have continued.  In this tight job market, the impact of losing an employee is significant, as is the loss of a job to an H-4 or L-2 spouse.

The settlement agreement resulted from the Shergill, et al. v. Mayorkas lawsuit filed by AILA, et al. 

Please contact me directly with questions at cwadhwani@foxrothschild.com or 412-394-5540.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For more than 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and Consulates worldwide.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

 

Reminder:  Effective today, May 26, 2015, the Immigration Service will accept applications for employment authorization from “certain H-4 dependent spouses of H-1B nonimmigrants”. (Employment Authorization for Certain H-4 Dependent Spouses Web page).

An H-4 spouse may only apply for an EAD (employment authorization document) if the H-4’s H-1B spouse is pursuing US permanent residence.  More specifically, the H-4 spouse may not file an EAD application unless the H-1B spouse:

  • Is the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker, OR
  • Has H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (as amended by AC21).

Of course, H-4 status isn’t the only status that an H-1B spouse may hold.  USCIS had previously announced that where a non-H-4 spouse applies for H-4 status, it will first change the status of the qualifying spouse to H-4 and then adjudicate the application for employment authorization. This will add another step to the process and take more time.

Please see my prior post on this topic, “H-4 EAD Applications Accepted Beginning May 26, 2015: Are you that “certain spouse”?” for more information.

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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.

 

If you’re anxiously awaiting news regarding work authorization for certain H-4 nonimmigrants, here’s the latest:

  • The period for submitting comments regarding the proposed rule closed on July 11, 2014.
  • In an open call held on August 14, 2014, USCIS Director León Rodríguez stated that the Service is in the process of considering the comments received.  He acknowledged the importance of the proposed rule to families and stakeholders and said that the Service was working as quickly as possible to conduct its review of the comments.

That’s all we know for now.  Hopefully there will be more news soon, but no time-frame was provided at this point.

For background on this topic, please refer to my May 16, 2014, Immigration View Blog Post captioned, “H-4 Work Authorization?  Not for everyone.”  You may also want to view the Federal Register Proposed Rule that was published on May 12, 2014.

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

On May 12, 2014, the US Department of Homeland Security (DHS) issued a Proposed Rule that would amend provisions of the US Citizenship and Immigration Service’s (USCIS’s) Regulations regarding work authorization for certain H-4 nonimmigrants.

An H-4 nonimmigrant is the spouse or child of an H-1B worker.  H-4 status does not currently provide eligibility for work authorization.

In a bold and seemingly well-considered move, DHS is proposing to change this.  Employment eligibility would not, however, be open to all who are in H-4 status.  Instead, if the proposed measure stands as it is, it would enable an H-4 spouse to apply for employment authorization if:

  • The H-1B spouse is either the beneficiary of an approved I-140 Immigrant Petition for Alien Worker, or
  • The H-1B spouse has been granted an extension of his/her authorized period of admission under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act. (Generally summarized, this is the provision which permits an H-1B petition to be extended beyond 6 years if the H-1B worker is the beneficiary of either a PERM application or I-140 petition pending for at least 365 days prior to reaching the 6th year of H-1B time.)

The stated goal in permitting certain H-4 nonimmigrants to apply for work authorization is the country’s interest in “attracting and retaining high-skilled foreign workers” for the benefit of the US economy, US employers, and alleviating possible economic burdens on the families of H-1B workers.  The benefit is also meant to encourage foreign workers who are stuck in what seems like an endless delay toward becoming US permanent residents, to remain in the US until the greencard process can be finished (i.e., a visa number becomes available and the case can be processed to conclusion).  In summary, if due to a priority-date backlog, an H-4 spouse can’t file an I-485 application to be eligible for employment-authorization, the Proposed Rule is the “fix” to permit the filing of the employment card application.

This proactive measure may also inadvertently help alleviate problems for US employers resulting from the limit on H-1B numbers.  Presumably, at least some of H-4 spouses were the beneficiaries of H-1B petitions that were selected in the H-1B cap lottery (and took a highly prized H-1B number) or were not selected (leaving a US employer without its prospective employee).

On another note, an interest of the country is also family unity.  Although this isn’t an economic interest, it would seem to me that consideration should be given to opening up eligibility for employment authorization to any spouse of a foreign worker who is maintaining lawful status and is the beneficiary of a Family-Based petition in a severely
retrogressed category.  Perhaps not many people would benefit, but…it’s a thought.

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

For FY 2017, the US Citizenship and Immigration Services (USCIS) received approximately 236,000 cap-subject H-1B petitions—which is more than last year by about 3,000 petitions.  Because the number of available spots remained the same, the odds of “winning” the H-1B Cap Lottery are slightly worse than last year.

Using the limited information available and basic mathematical calculations, simple math shows that the overall odds of receiving a number in the FY 2017 H-1B cap are just over 33%.  If you deduct the 20,000 advanced degree “winners” from the total 236,000 petitions, and re-calculate, the odds decrease to just over 26% for the remaining petitions which include both the unselected advanced degree petitions and the regular cap petitions.

This compares to my FY 2016 calculations of about 34% for the Master’s cap and only approximately 27% for the regular cap.  For FY 2015 H-1B my calculations indicated that the odds were about 43% under the regular cap, with still better chances for those with a Master’s or higher degree at approximately 50%.

So each year, the odds of being selected in the lottery have decreased.  This year, however, the difference is much less dramatic than the change between FY 2015 and FY 2016.  Perhaps the economic improvement of recent years has stabilized and demand for highly specialized workers is leveling out.  Or, it could be that some pressure for H-1B numbers was alleviated due to the eligibility of certain H-4 spouses for work authorization.  (See my blog post H-4 EAD Applications Accepted Beginning May 26, 2015:  Are you that “certain spouse”? at https://immigrationview.foxrothschild.com/general-immigration-news-and-updates/h-4-ead-applications-accepted-beginning-may-26-2015-are-you-that-certain-spouse/.)  Nobody can say for sure.

What we do know is that USCIS completed its computer-generated random selection process (i.e., lottery selection) on April 9th.  Receipt notices (I-797 Notices of Action to acknowledge petition receipt) are still being sent.  Will you be one of the lucky winners?  Time will tell whether your petition is selected in the lottery or it will be one of the over approximately 150,000 petitions that will be rejected and returned to employers.

For more information regarding the “odds” during FY 2016 and FY 2015, please see my prior blog posts captioned, FY 2016 H-1B Cap:  What are the Odds? at https://immigrationview.foxrothschild.com/general-immigration-news-and-updates/fy-2016-h-1b-cap-what-are-the-odds/ and FY 2015 H-1B Cap:  What are the Odds? at https://immigrationview.foxrothschild.com/h-1b-temporary-workers/fy-2015-h-1b-cap-what-are-the-odds/.

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Catherine Wadhwani is a partner in Fox Rothschild LLP’s Immigration Practice Group.  You can reach Catherine at (412) 394-5540 or cwadhwani@foxrothschild.com.

 

Demand for H-1B numbers is likely to remain high during Fiscal Year 2017 (FY2017).  It remains to be seen whether proposed and actual changes to the Immigration Regulations, such as extended STEM OPT EADs, H-4 EADs, etc., will reduce the demand or alleviate the lottery for H-1B numbers.

If you are a cap-subject employer, it’s time to think about your hiring needs if you are considering petitioning for H-1B status for a new foreign hire.

You may recall that during the past two fiscal years, FY2016 and FY2015, employers filed more than twice the number of cap-subject H-1B petitions than are available (see prior posts on this topic here and here). That left many employers in a difficult situation with regard to their staffing needs.  Approximately half of the H-1B petitioning employers didn’t receive H-1B approvals for their employees (e.g., F-1 OPT workers) or prospective employees.

Making your hiring decisions early won’t increase your chances of “winning” the FY2017 H-1B lottery, but it could make your life less stressful.  Having a plan in place should allow you a comfortable amount of time to contact us with the details of your case for assessment, gather and provide us with the necessary documents and information, etc.

Although most cases can be prepared quickly, it’s best to allow for the unexpected (e.g. a missing document needed from abroad, a problem with the issuance of Labor Condition Applications (LCAs), which are needed as part of the H-1B petition packages, etc.).

Wishing you a pleasant H-1B season.