H-4 EAD FAQ

Starting May 26, 2105, certain H-4 spouses of H-1B holders can file for an Employment Authorization Document (EAD).  The full regulation has just been published. 

Musillo Unkenholt has had many questions from clients and friends of the firm.  We have published these in this FAQ.

Can I file before May 26, 2015?

No.  The USCIS will not accept EAD applications until May 26, 2015.

How long will it take the USCIS to process the EAD Application?

Traditionally EAD Applications take 90-120 days until approval.

Can I work upon the filing of the EAD Application?

No.  The EAD must be approved?

Who qualifies for the new H-4 EAD card?

Certain H-4 spouses may file for the new H-4 EAD.  Children who hold H-4 status are ineligible for the EAD.

Which H-4 spouses may file for an EAD?

In order to decide if you qualify for the H-4, we must look to the underlying H-1B status holder.  The USCIS elected to apply the rule first set forth in Section 106 of AC21.  The H-1B worker must either:

A.  Hold an approved I-140, Petition for Alien Worker.  The approved I-140 does not need to be from his present employer; or

B.  Have a priority date that is at least one year old.  A priority date can be established by the filing of a PERM Application or a Form I-140.

May an H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B) one year has passed since the filing of a PERM or I-140?

No.  The USCIS looks to the H-1B worker to meet A or B, above.  It is irrelevant if the H-4 meets A or B.

Are there any limitations on the work that I can perform on an H-4 EAD?  For instance, is there a prevailing wage?  Am I limited only to certain types of jobs?

No.  There are no such limitations.  You can work for any employer, at any rate (above minimum wage), and in any occupation.

What should I do if I want to file an H-4 EAD?

EAD Applications do not require an attorney’s assistance, although many people find it helpful to have an attorney assist in the process.  If you would like MU Law to help, please contact us.

H-4 EAD RULE IS EFFECTIVE MAY 26

USCIS has just announced that the long-awaited H-4 EAD rule will go into effect on May 26, 2015.

Under the new H-4 EAD rule, the H-4 spouse may obtain an EAD card in two instances.   (1) Either the principal H-1B worker has to have had a PERM Application pending for at least one year or (2) the principal H-1B worker has to have an approved I-140. 

H-4 spouses who meet one of the two conditions may file an I-765, Application for Employment Authorization.  Ordinarily, I-765 Applications are approved in 90-120 days.  Accordingly, H-4 spouses who qualify should be able to begin working in September 2015.

NON-IMMIGRANT MAINTENANCE OF STATUS: F-1 & PERIODS OF AUTHORIZED EMPLOYMENT

Generally, all persons in a non-immigrant classification are required to maintain their immigration status for the duration of their stay in the U.S. This issue is of particular importance as we approach the impending 2016 H-1B CAP season. A prospective employee in a non-immigrant status must demonstrate compliance and maintain status at the time of the H-1B filing. Failure to maintain the status can cause a denial in the prospective employee’s H-1B petition.

More recently, the USCIS has narrowly focused on F-1 students and particularly whether the student maintained status during any period(s) of authorized employment. The authorized periods of employment may include any work performed while engaged in Optional Practical Training (OPT) or Curricular Practical Training (CPT).

There are 4 primary characteristics that serve as evidence of the student’s maintenance of status while engaged in OPT/CPT:  

1. The student was enrolled full-time each semester;
2. The student was engaged in full-time employment while on OPT/CPT (or part-time work if so designated on the SEVIS Form I-20);
3. The CPT was an integral part of the student’s degree program; and  
4.  The student engaged in CPT work after completing 1 year of academic studies. 

In their discretion, the USCIS can request for additional clarification of the student’s academic and employment history. And ultimately the agency can issue a denial of the H-1B petition when the evidence provided deviates from the above mentioned characteristics.    

PREDICTING THE VISA BULLETIN FOR 2015

AILA regularly checks in with Charlie Oppenheim, who is the Department of State’s guru on Visa Bulletin numbers.  Their most recent Check In with Charlie contains projections for 2015.  Here are his projections for several major visa categories.

India EB-2.  This category had stagnated for a long time until the recent March 2015 Visa Bulletin that progressed the date by 16 months, to January 2007.  Charlie expects that India EB-2 will continue to progress at a very steady rate in the upcoming months.

Philippines EB-3.  Demand for Philippine EB-3 remains lower than expected, which is good news for those in this category.  He does not see the demand on the horizon, which leads to his projection that Philippine EB-3 should run parallel to Worldwide EB-3.  He cautions that if the nursing demand returns, a correction may be required for this category.

Worldwide EB-3. The Worldwide EB-3 has advanced in the past few months in order to spur demand.  If the demand continues to stay soft, the progressions will continue.  If the demand picks up, the Worldwide EB-3 number will slow down.

China EB-2 and EB-3.  Low demand for Chinese family-based visas has buoyed the China EB-2 and EB-3 categories.  The EB-2 continues to run behind the EB-3 category, although the gap between the two appears to be tightening. 

MARCH 2015 VISA BULLETIN

The Department of State has just released the March 2015 Visa Bulletin.  This is the sixth Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  This is one of the most favorable Visa Bulletins in years and likely reflects the decreased demand for US visas during the recession.

The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date.  These are all now at June 2014, which is the closest to current they have been in many years.

India EB-2 had a jump in dates as well.  It moved to January 2007, representing a 2 year increase int he last two months.   Even India EB-3 reached a milestone, progressing into 2004.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01SEP10	01JAN07	C	C
3rd	01JUN14	22OCT11	01JAN04	01JUN14	01JUN14

POSSIBLE LEGISLATION: THE STARTUP ACT

A new bill called “The Startup Act” was introduced in the Senate last week to benefit immigrant entrepreneurs and those in the STEM (Science, Technology, Engineering, and Mathematics) fields.  The Startup Act states that new companies create jobs in the US and that entrepreneurs must be free to work in the US and to hire employees to get the US back to work.

The Startup Act offers the following three key benefits:

1.       Conditional Permanent Residency for Those in STEM Fields.

Aliens holding a master’s or doctoral degree in a STEM field from a US institution can apply for Conditional Permanent Residence (CPR) for up to one year after their F-1 studies conclude.  CPR is a temporary green card, valid for a limited period of time and contingent on the green card holder completing certain required actions.  At the end of the temporary green card validity period, the applicant must have completed the required actions to obtain a permanent green card, valid for ten years.

To qualify for CPR under this part of the Startup Act, the applicant must be “diligently searching” for an opportunity to become gainfully employed in a STEM field occupation.  The alien can be granted CPR for up to five years and can remove the conditions and obtain a permanent green card, or naturalize and become a US Citizen after the five year period, provided the applicant has been employed in a STEM occupation for the duration of the five year period.

2.       Conditional Permanent Residency for Entrepreneurs.

The Startup Act provides that immigrant entrepreneurs can be granted CPR for up to four years.  The CPR holder is eligible to apply for a permanent green card if:

·         the alien holds F-1 or H-1B status

·         during the first year of the CPR, the alien

o   registers a new business in the US

o   the alien’s business employs at least full-time employees who are not members of the alien’s family

o   the alien invests or raises capital of $100,000

·         during the remaining three years of the CPR, the alien employs at least five full-time employees who are not members of the alien’s family

3.       Elimination of Per Country Caps and Rollover of Unused Green Cards.

Finally, the Startup Act phases out the per country caps on green cards over a three year period.  It also provides for the rollover of unused green cards.

KNOWN EMPLOYER PROGRAM FOR CANADIAN COMPANIES

By late 2015, The Department of Homeland Security (DHS) is expected to launch a test program with the Canadian government. The initiative is designed to streamline adjudication of certain types of employment-based immigration benefit requests filed by eligible U.S. employers. Essentially, the goal is to aid U.S.– Canada business travel.  

The pilot program emerged under the U.S. and Canada Beyond the Border initiative. The latter allows both countries to work together to address threats within, at, and away from their borders, while expediting lawful trade and travel. And in doing so, the pilot program furthers the binational commitment under the North American Free Trade Agreement.

The Known Employer program will facilitate legitimate cross-border business travel along the northern border ports of entry. Specifically, the program targets to: 

• Make adjudications more efficient and less costly.
• Reduce paperwork and delays for both the department and U.S. employers who seek to employ foreign workers.

This is not the first program of its kind. The DHS has initiated a trusted employer concept in the Philippines with its Priority Interview Program and  Business Executive Program in India. 

H-1B TELECONFERENCE ON FEB 4

** REMINDER **

In anticipation of the H-1B cap filing date of April 1, 2015, MU Law will be holding a free teleconference for our clients on February 4, 2014 at 2PM / 11AM PT.  Interested clients should email MU’s Annalisa Smith, who can register you for the teleconference.

Last year the H-1B cap was reached in the first week; we expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2015.

H-1B cap-subject petitions include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

THE BEST PROOF THAT THE H-1B IS NOT ABOUT TAKING JOBS

In 2009, a mere 9,000 H-1Bs were received in the first month of H-1B processing.  It would be 264 days before the H-1B cap was reached.  In 2010, it took 300 days until the H-1B cap was reached.  In 2011, there were 236 days between the April 1, 2011 cap opening and the November 23, 2011 cap being reached.  Not coincidentally, the US employment rate from 2009-2011 ranged between eight and ten percent.

On the other hand, the H-1B cap was reached on the very first day in 2007, 2008, 2013 and 2014, mirroring the low unemployment rate.

 

The lack of H-1B petition filings in years when the unemployment rate is high is compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries.

Why?  Because if H-1B visa labor was being used primarily to lower US workers’ salaries, then H-1B filing numbers would not correlate with US unemployment rates.   If anything, the reverse would happen because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.

This logic is straightforward and it is a shame that otherwise successful people do not see employment visas for what they are -- tools for growing industries to fill labor shortages.  Organizations -- and governments -- work better when they work on data and not on nonsense.

H-1B TELECONFERENCE FEB 4, 2015

In anticipation of the H-1B cap filing date of April 1, 2015, MU Law will be holding a free teleconference for our clients on February 4, 2014 at 2PM / 11AM PT.  Interested clients should email MU’s Annalisa Smith, who can register you for the teleconference.

Last year the H-1B cap was reached in the first week; we expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2015.

H-1B cap-subject petitions include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

WILL THE PRESIDENT PUSH CONGRESS ON IMMIGRATION AND WILL IT MATTER IF HE DOES

President Obama is readying this year’s State of the Union address.  The annual speech is given to Congress in late January.

Last year, he barely gave it a mention, stating, “If we are serious about economic growth, it is time to heed the call of business leaders, labor leaders, faith leaders, and law enforcement – and fix our broken immigration system.”

Congress failed to act on his mild plea and no immigration measure passed Congress.  Frustrated with Congress’ refusal to act, the President announced a large scale immigration reform measure in November, via Executive Action.

The broad proposal calls for immigration reform in a number of areas where the President believes that he can act without Congressional action.  About half of the State’s Attorneys General have sued the President seeking to block the enactment of the plan outlined in November.

At this point it seems like the President and the Congress are unwilling to make any steps toward a mutually acceptable immigration bill.  House Speaker Boehner seems more interested in Taylor Swift GIF’s than meaningful legislative measures.

CHANGES TO THE MANILA MEDICAL EXAM PROCESS

The US Embassy – Manila has begun a new medical exam process.  Effective January 5, 2015, St. Luke’s Medical Center Extension Clinic (SLMCEC) will release the medical exam results directly to the applicants unless instructed otherwise by the Panel Physician.

Immigrant Visa applicants are reminded to bring the sealed medical exam report to their scheduled interview at the U.S. Embassy Manila.  If your medical exam pouch is tampered, the Embassy will instruct you to return your exam to the SLMCEC for resealing.

Detailed information about the medical exam process is available at the US Embassy’s website.

FEBRUARY 2015 VISA BULLETIN

The Department of State has just released the February 2015 Visa Bulletin.  This is the fifth Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date.  These are all now at January 2014.  

India EB-2 had a jump in dates as well.  It moved seven month and is now at September 2005.   India EB-3 continued to move ahead at a snail's pace.  It is December 2003.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15MAR10	15SEP05	C	C
3rd	01JAN14	01SEP11	22DEC03	01JAN14	01JAN14

EXECUTIVE ACTION EXPANDS THE USE OF THE EAD

MU's Maria Schneider authored the Greater Cincinnati Human Resources Association's January Guest Blog opinion. Maria's piece discusses President Obama's recent Executive Action on Immigration and the expansion of the use of the Employment Authorization Document.


President Obama recently announced the Immigration Accountability Executive Actions (IAEA), a series of changes to immigration policy. At this time, only summary policies have been released; over the next few months, more details will emerge.  The earliest of these changes will take effect in the first quarter of 2015.  

The following four parts of the IAEA allow individuals to obtain work authorization in the form of an Employment Authorization Document (EAD)(read more on the GCHRA website).

H-1 CAP INCREASE IN 2015?

With the New Year comes a new Congress and the potential for new legislation.  Both houses of Congress are firmly in Republican hands, and so all legislation proposed and passed by this Congress will be Republican in nature.

Over the New Year holiday several publications indicated that an increased H-1B cap may be first up on the Republican immigration agenda.  Computerworld suggests that the new Congress may move swiftly on increasing the H-1B cap.  Reporter Patrick Thibodeau says that the Congress may move on the I Squared Act.  The I Squared Act, which was authored by Sen. Orrin Hatch (R-UT) had bipartisan support when it was first introduced in 2013.  

The I Squared Act (Immigration Innovation Act) calls for the H-1B cap to increase to 115,000 per year, from its current 85,000. Additionally, the H-1B cap would contain a “market-based escalator” that would increase or decrease the H-1B cap as employer-demand ebbed and flowed, although it could never fall below the 115,000 threshold.  It could conceivably rise as high as 300,000 over several years.

Yesterday the Washington Post reported that Sen. Hatch reiterated that

“The new Congress has an opportunity to enhance America’s competitive workforce through immigration reform that will streamline the hiring process for high-skilled individuals entering the United States and by investing in STEM education and training.”

Presumably Sen. Hatch’s “opportunity” includes reviving last year’s I Squared Act.

President Obama has already laid down his marker with a bold Executive Order, which includes giving work permits to about 5 million undocumented aliens.  In using his Executive Order, President Obama has shown that he understands the power of the government to effect change.  His power is however eclipsed by Congress’.  It is Congress’ turn to act on that power.

VISA BULLETIN PROJECTIONS FOR 2015

AILA holds a regular meeting with the Department of State’s Charlie Oppenheim, who is the DOS’ chief for producing the Visa Bulletin.  MU Law has spoken with Mr. Oppenheim several times in the past and have always found that his projections are well thought out and very accurate.

India EB-2.  Mr. Oppenheim suggests that India EB-2 may slightly progress in the first-half of 2015.  Historically the Visa Office has waited until the summer to advance the India EB-2 date.

China EB-3.  China EB-3 is expected to continue to advance since demand has not yet been exceptional.   However, as more and more China EB-2 applicants “downgrade” their Application to EB-2, advancement will slow.

President Obama’s Recent Executive Action.  The Visa Office reminds users that the President’s Executive Action is not expected to have any impact on the Visa Bulletin.  While the Executive Action suggests that Adjustment of Status applications will be able to be filed much earlier in the green card process, these “pre-filings” will not impact the priority dates.

JANUARY 2015 VISA BULLETIN

The Department of State has just released the January 2015 Visa Bulletin.  This is the fourth Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The Philippines EB-3 yet has again had a substantial progression.  It is now at June 2013, which is a progression of six more months.  It remains consistent with the All Other (ROW) EB-3 date and the Mexican EB-3 date.

India EB-2 remained stuck at February 2005.  The India EB-2 date retrogressed by four years recently and it does not appear  that any meaningful progression is imminent.  India EB-3 continued to move ahead at a snail's pace.  It is December 2003.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB10	15FEB05	C	C
3rd	01JUN13	01MAR11	15DEC03	01JUN13	01JUN13

US WORKERS SUE TO ELIMINATE OPT

The Washington Alliance of Technology Workers (WashTech), a collective bargaining organization that represents science, technology, engineering, and mathematics (STEM) workers, has sued the U.S. Department of Homeland Security seeking to eliminate the Optional Practical Training (OPT) program.  The OPT program allows foreign nationals on an F-1 student visa to engage in twelve months of employment during and following a full-time course load in a U.S. educational institution.  Certain STEM applicants can extend their OPT status an additional 17 months, pursuant to an April 2008 instituted by President George W. Bush’s administration.  The OPT is often seen as a bridge to the H-1B program.

WashTech argues that the OPT program causes actual harm to US technology workers because US employers hire these OPT workers when the employers could be hiring these US workers.  The WashTech plaintiffs have standing to make their case.  The court’s finding that standing exists means that the case can go forward, although the court’s decision does not speak to the likelihood of success when the substantive case is argued.

HOW AMERICA ENACTS LAWS

Funny stuff from Saturday Night Live, which attempts to explain how the President's Executive Order works.

PRESIDENT OBAMA TAKES EXECUTIVE ACTION

Last night President Obama announced the Immigration Accountability Executive Actions (IAEA), which is a series of wide-ranging changes to immigration policy.  Most of the major changes are centered on the undocumented community.  However, some changes will impact the business community.  At this point, only summary policies have been released by the administration.  Over the next few days and weeks, more details will emerge.  None of the changes are expected to take effect until after the New Year

MU Law will be holding a client teleconference on Tuesday December 2, 2014 at 2PM ET / 11AM PT for all clients and friends of the firm.  If you or anyone in your organization would like to dial-in to the teleconference, please contact Annalisa Smith (Annalisa@muimmigration.com) to register.

Here are the key components of the IAEA, with a focus on the policies that will impact clients and friends of MU Law:

1. Allowing earlier filing of the I-485, Adjustment of Status: Green card applicants will no longer have to wait until their priority date is current in order to file their I-485, Adjustment of Status. This is especially helpful for India and China EB-2 applicants and all EB-3 applicants in the US.

a. By allowing green card applicants to file their I-485, Adjustment of Status much earlier in the green card process than under the current process, applicant’s spouses will be able to obtain work authorization (EAD cards) many years earlier than under the current policy. 

b.  Once an I-485 is pending for 180 days, applicants are able to leave their green card employer-sponsor provided that they have found a “same or similar” position.  The President has also announced that the USCIS will be providing guidance on the definition of “same or similar”.  The forthcoming guidance is expected to be more liberal than the current interpretation.

2.  H-4 Work Authorization.  This long-proposed rule will allow spouses of H-1B workers to obtain work authorization.  Earlier this summer, the USCIS floated a proposal that limited the EAD to H-4 spouses whose H-1B workers have been in the green card process for at least one year.  A final regulation is expected in December or January.

3. PERM.  The Department of Labor is expected to “modernize” the PERM process, including a potential “harmless error” provision.

4. Entrepreneurs.  The administration will be “clarifying” rules regarding using the national interest waiver and parole processes for entrepreneurs.  It is expected that these rules will be liberalized to encourage investment and entrepreneurs.

5. L-1B Guidance.  The L-1B visa system is riddled with inconsistent decision-making.  The USCIS will be offering guidance to help on this issue.

6. OPT.  Optional Practical Training will be expanded.

7. Deferred Action expansion.  This provision is the focus of much of the media attention.  Some undocumented and illegal people in the US will be able to gain temporary three year work authorization and no longer be under the threat of deportation/removal. 

a. Deferred Action for Parents (DAP): Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since January 1, 2010, and who pass background checks and pay back taxes; and

b.  DACA Expansion: The age cap on DACA will be removed and the date when continuous presence must have started will be changed from June 15, 2007 to January 1, 2010.