December 10, 2014 § Leave a comment
Is employment authorization for H-4 nonimmigrants a reality?
Not just yet, but it is getting closer.
By definition, individuals holding an H-4 visa are dependent family members of those in H-1B status (nonimmigrant professionals with specialized knowledge). Typically, H-4 visa holders are not allowed to work while in that status.
In May 2014, the Department of Homeland Security published a proposed rule in the Federal Register pertaining to employment authorization for certain H-4 dependent spouses. The rule proposes to amend existing regulations to allow employment authorization for H-4 dependent spouses of principal H-1B nonimmigrants seeking employment-based lawful permanent resident status in the United States.
If the rule is enacted, H-4 nonimmigrants would need to apply for employment authorization using Form I-765, Application for Employment Authorization.
The comment period on the proposed rule ceased in July 2014. Many organizations and individuals submitted comments during the open period, with over 13,000 comments received. Most comments called for an expansion of the proposed rule to allow ALL H-4 nonimmigrants, not only those with a spouse, to apply for employment authorization. Comments also suggested H-4 dependent children should be included.
In August 2014, U.S. Citizenship and Immigration Services (“USCIS”) Director, Leon Rodriguez, stated that USCIS is reviewing the comments received and plans to complete the review process as quickly as possible. Thus far, no further update has been issued. However, with the midterm elections behind us, we think a change may be coming very soon.
We at GoffWilson are watching this important development closely for all our affected clients and we will keep you informed on all developments relating to H-4 work authorization as we learn anything.
Please check our bLAWg for all the latest news and updates on changes in immigration rules and regulations that may affect you and or your family members. If you have any questions, please contact us for more information.
December 2, 2014 § Leave a comment
On November 20, 2014, President Obama announced his executive actions for improving the U.S. immigration system. The President’s initiatives focus centrally around two main points: accountability for undocumented immigrants and options to streamline certain immigration programs and benefits.
Working with the U.S. Department of Homeland Security (DHS), the President has identified ten major areas for executive action. These areas include:
- Expanding the Deferred Action for Childhood Arrivals (DACA) Program;
- Extending the Deferred Action Program to parents of U.S. Citizens and Lawful Permanent Residents (i.e. green card holders);
- Amending the Provisional Waiver Program to include spouses and children of green card holders;
- Revising parole rules to expand travel opportunities and clarify existing regulations; and
- Improving the citizenship process.
Each of the areas encompasses certain initiatives set to take place in the coming months. We have highlighted some of these initiatives below.
1. Initiatives for Undocumented Immigrants
- DACA Expansion: The DACA Program will be expanded to remove the upper age restriction and permit initial employment authorization for three years instead of two.
- Deferred Action for Parents: Deferred Action will be permitted for parents of U.S. Citizens and green card holders (born on or before November 20, 2014), who have continuously resided in the U.S. since January 1, 2010 and are not a threat to public safety. This Program will also allow requests for employment authorization.
- Provisional Waiver Program Amendment: The current Provisional Waiver Program (i.e. program allowing for individuals to apply for a waiver of unlawful presence in the U.S. before departing for a visa interview) will be amended to include adult children of U.S. Citizens and spouses and children of green card holders.
- Revisions to Parole Rules: The current parole rules (i.e. rules governing temporary authorization to enter the U.S.) will be revised to address the availability of parole to spouses, parents, and children of U.S. Citizens and green card holders seeking to enlist in the U.S. Armed Forces. The revisions will also clarify that using advance parole (i.e. travel authorization obtained in advance) to leave the U.S. is not considered a departure, even for deferred action individuals. This will result in undocumented individuals being able to leave the U.S. under advance parole without triggering the 3- or 10-year bar.
2. Initiatives for U.S. Citizenship
- Improvements to Citizenship Application Process: The application process for U.S. Citizenship will be improved to allow for fee payments by credit card. The possibility of partial fee waivers will also be assessed.
Each of the initiatives will be implemented in the coming months. The DACA expansion is set to occur in the next three months, while Deferred Action for Parents will be implemented in six months. DHS is working to integrate the changes into current policy.
November 25, 2014 § Leave a comment
On November 20, 2014, President Obama addressed the nation and announced his executive actions for improving the existing immigration system. Several of the President’s initiatives will directly affect U.S. employers. We have highlighted some of these initiatives below:
1. Initiatives for Skilled Workers
- PERM Program Modernization: The U.S. Department of Labor (DOL) has committed to modernizing the PERM Program (i.e. the first step in the employment-based green card process for employees) for the first time since the Program’s inception ten years ago. Specifically, the DOL plans to review the current regulations and seek input on key items such as labor force occupational shortages, recruitment requirements, premium processing possibilities, and typographical errors.
- Adjustment of Status Timing: Individuals with an approved I-140 petition, who are waiting for their priority date to become current, will be permitted to file for Adjustment of Status (i.e. their green card application) earlier. This will allow the individuals to gain benefits of having an application pending, such as an EAD card and a travel document. This will also allow employees awaiting their green cards to switch employers more easily.
- Employment Authorization for H-4 Spouses: H-4 spouses of H-1B skilled workers with an approved I-140 petition will be eligible to apply for employment authorization.
- Clarifying Guidance on L-1B and Portability Provisions: Clarifying guidance will be provided to further explain the requirements of L-1B visa eligibility and clearly define “specialized knowledge.” Guidance will also be provided to clarify the definition of “same or similar classification” for employees wishing to port (i.e. switch) employers while their green card application is pending.
2. Initiatives for Investors and Entrepreneurs
- Travel Authorization for Foreign Investors: Certain investors will be granted temporary authorization to travel to the U.S. to explore opportunities for job creation. This travel authorization can also be used to temporarily pursue research and development of new businesses in the U.S.
- National Interest Waivers: Certain entrepreneurs, investors, and founders will be eligible to apply for a National Interest Waiver (i.e. a waiver of the job offer requirement for a green card applicant pursuing work in the U.S. that is found to be in the national interest).
3. Initiatives for Students
- STEM OPT Expansion: Optional Practical Training (OPT) for STEM graduates (i.e. graduates with a degree in a field of science, technology, engineering, or mathematics) will be expanded to allow for a longer period of time in OPT. The relationship between the STEM graduate and their degree institution will be strengthened during this period.
The timeframe for each initiative differs, depending on whether full regulatory review is required for the initiative to be enacted. The earliest change expected is employment authorization for certain H-4 spouses, which could happen as early as December or January. The other changes are expected to follow in the coming months.
November 7, 2014 § Leave a comment
On November 3, 2014, Secretary of Homeland Security Jeh Johnson released a statement describing certain “security enhancements” for the Visa Waiver Program (“VWP”). Effective immediately, applicants submitting their VWP Travel Application through the Electronic System for Travel Authorization (“ESTA”) will need to provide additional information to secure travel authorization.
Specifically, applicants are now required to provide other names and aliases, contact information, and more detailed passport data. Secretary Johnson disclosed in his statement that the changes were made to enhance VWP security and learn more about travelers coming to the United States.
The VWP allows citizens of 38 participating countries to travel to the United States—without a visa—for stays up to 90 days. The purpose of the travel must be allowable under the B Visa, which permits travel for certain business and tourism activities. In order to travel to the United States under the VWP, a traveler must first secure authorization through ESTA.
ESTA is an automated system that determines the eligibility of applicants to travel under the VWP. However, securing travel authorization through ESTA does not guarantee admission into the United States. Customs and Border Protection will need to make its own admissibility determination upon the traveler’s arrival in the United States.
Participating VWP countries include Australia, France, Germany, Italy, Japan, South Korea, and the United Kingdom. For the full list of participating countries, as well as additional information on the VWP, please click here.
October 17, 2014 § Leave a comment
In our recent Blawg post dated September 22, 2014, we mentioned the possibility of a November 2014 retrogression for the EB-2 India visa category. As we predicted, the EB-2 India cut-off date has retrogressed to February 15, 2005 on the Department of State’s November Visa Bulletin. The prior cut-off date for EB-2 India was May 1, 2009.
In the Bulletin’s Visa Availability in the Coming Months section, the Department of State declares there will most likely be “no forward movement” for EB-2 India in the coming months. Due to this declaration, foreign nationals who fall under the EB-2 India category should file their eligible immigrant visa applications as soon as possible. Need assistance? GoffWilson can assist you in the filing of your application. Not eligible to file? Contact our office today to discuss what other options may exist for you or your employees even with visa retrogression.
Please visit the following link to view the November 2014 Visa Bulletin: http://1.usa.gov/1DbYIV7
September 18, 2014 § Leave a comment
Each month, the U.S. Department of State (DOS) publishes a Visa Bulletin that summarizes the available immigrant visa numbers for the upcoming month. The visa numbers are calculated based on total fiscal year limits set by the Department of State.
The Visa Bulletin is broken down by categories (e.g. employment-based), preferences (e.g. 2nd preference), and countries of chargeability (e.g. India), which are presented in matrix format. On each of the matrices, the breakdowns come together with either a “C,” a “U,” or a date.
- A “C” stands for current (i.e., all of the immigrant visa demand for that breakdown can be satisfied by the amount of available visa numbers currently allocated).
- A “U” stands for unavailable (i.e., all of the allocated visa numbers in that breakdown have been used for the fiscal year).
- A date represents the cut-off date for an oversubscribed breakdown (i.e., not all of the immigrant visa demand for that breakdown can be satisfied by the amount of available visa numbers currently allocated).
Cut-off dates are determined by priority dates (i.e., date of filing for the petition or application granting a visa number). Thus, if a date is listed in one of the matrix breakdowns on the monthly Visa Bulletin, the date represents the priority date of the first applicant whose immigrant visa application could not be processed within the numerical limits.
For example, if “01APR11” appears in one of the matrix breakdowns, then only applicants whose priority dates are earlier than April 1, 2011 are eligible to receive an immigrant visa.
Countries of chargeability are determined by countries of birth. It is important to note that this is not referring to country of citizenship. Often times, foreign nationals mistakenly believe that they can “skip the line” by obtaining citizenship in another country. Unfortunately, this is not the case.
Currently, the Department of State has four countries designated on the Visa Bulletin whose visa demand exceeds the per-country limitation. These countries are China (mainland born), India, Mexico, and Philippines. If a country is not specifically represented on the Visa Bulletin, it falls into the “All Chargeability Areas” section. In recent months, the India Employment-Based Second Preference (“EB-2 India”) cut-off date has been rapidly advancing due to the use of “otherwise unused” immigrant visa numbers. However, this rapid advancement has led to increased demand for these visas.
In the October 2014 Visa Bulletin, the DOS specifically mentions that the increased demand will require the retrogression of the EB-2 India cut-off date. The Visa Bulletin goes on to explain that the retrogression could occur as early as November 2014. Currently, the cut-off date for EB-2 India is May 1, 2009. However, Visa Bulletin experts are predicting a retrogression to around 2005.
Pursuant to this information, foreign nationals who fall under the EB-2 India category should verify whether they are eligible to file an immigrant visa application based on the current cut-off date. Eligible individuals should heed the retrogression warning and file their applications as soon as possible. Not sure how to verify this information? GoffWilson is here to help! Please contact our office today for more information on filing an immigrant visa application.
To view the October 2014 Visa Bulletin click here.