Search
Contact
Login
Share this article
On May 26, U.S. Citizenship and Immigration Services will begin accepting applications for employment authorization from H-4 spouses of H-1B employees, under a new regulation. USCIS has released guidelines and an FAQ on the new rule.
The rule allows certain H-4 dependent spouses to obtain work authorization as long as the H-1B employee has an approved Form I-140 or has been granted an extension of stay beyond the initial six-year period under the American Competitiveness in the Twenty-first Century Act (AC21).
Under the new procedures, eligible H-4 spouses may apply by filing the standard Employment Authorization Document Application Form I-765 with supporting evidence. EAD applications are currently taking at least three months to process.
When it issued the regulation in February, the Department of Homeland Security predicted a heavy application volume, especially in the first year. USCIS has shifted resources to handle the new filings over the next two months, which should help alleviate delays.
BAL Analysis: The regulation has been extremely well-received by H-1B employees and their H-4 spouses. Applicants planning employment start dates should keep in mind that current processing times are estimates and could run longer, as USCIS is expecting to receive a large number of applications under this much-anticipated regulation.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Beginning May 26, all premium processing of H-1B Extension of Stay petitions will be suspended until July 27, U.S. Citizenship and Immigration Services announced today.
USCIS will continue to premium process H-1B Extension of Stay petitions filed with requests for premium processing prior to May 26. Between May 26 and July 27, the agency will not accept requests for premium processing for these petitions.
USCIS will refund the premium processing fee if a petitioner filed a premium-processing H-1B Extension of Stay petition prior to May 26 and USCIS has not acted on the case within 15 calendar days.
Premium processing remains available for all other H-1B petitions, including those that are subject to the H-1B cap where petitioners are requesting a change of nonimmigrant status.
BAL Analysis: On May 26, USCIS will begin accepting applications for work authorization for H-4 spouses of H-1B employees under a new regulation. The temporary suspension of premium processing for H-1B extension petitions will allow the agency to process the expected large influx of H-4 work authorization requests in a timely manner.
The Department of Homeland Security asked a federal court Tuesday to dismiss a lawsuit brought by a group of American computer workers who have sued to stop the upcoming implementation of a regulation allowing H-4 spouses of H-1B visa holders to work.
In its motion to dismiss the case, DHS argues that the computer workers lack standing to sue because they have failed to demonstrate any actual and direct harm caused by the regulation, which is scheduled to take effect May 26.
“Indeed, they fail to submit a scintilla of documentary evidence supporting their claim that they have been injured,” DHS contends in its motion.
The lawsuit brought by the group, Save Jobs USA, asks the court to block the rule, claiming that its members will be harmed if the rule takes effect because they will now have to compete with H-4 spouses for jobs.
But DHS argued that the suit “asks this court to speculate as to how the as-of-yet not effective H-4 Employment Authorization Document rule might impact [Save Jobs USA]’s members, thereby requiring this court to engage in guesswork without the benefit of a tangible record or evidence to review.”
DHS also argues that it acted within the regulatory powers granted to it by Congress when it issued the regulation allowing H-4 work authorization.
BAL Comment: Unless the court acts soon to side with the complainant and halt the new regulation, the H-4 rule will be implemented by U.S. Citizenship and Immigration Services as planned on May 26.
After advancing significantly last month, priority dates for EB-2 China will continue to jump forward by one year this month from June 1, 2012 to June 1, 2013, according to the State Department’s June 2015 Visa Bulletin. Indian workers in the EB-2 category will also see continued forward movement of more than five months from April 15, 2008 to Oct. 1, 2008. Priority dates for all other nationalities in the EB-2 category will remain current.
Following a retrogression of more than seven years last month, the EB-3 Philippines category will further retrogress by two and a half years from July 1, 2007 to Jan 1, 2005. All other EB-3 preference categories will advance. EB-3 China priority dates will move forward by four months from May 1, 2011 to Sept. 1 2011, while EB-3 India will advance by one week from Jan. 15, 2004 to Jan. 22, 2004. Priority dates for EB-3 Mexico and Rest of World will advance moderately by one and a half months from Jan. 1, 2015 to Feb. 15, 2015.
Summary of June 2015 Visa Bulletin:
EB-1 Current across all countries
EB-2 China: June 1, 2013 India: Oct. 1, 2008 All other countries: Current
EB-3 China: Sept. 1, 2011 India: Jan. 22, 2004 Mexico: Feb. 15, 2015 Philippines: Jan. 1, 2005 All other countries: Feb. 15, 2015
Diversity lottery winners for fiscal year 2016 will be announced Tuesday.
The diversity lottery provides 50,000 immigrant visas per year to individuals from countries with historically low immigration to the U.S.
Beginning at noon EDT on Tuesday, diversity lottery entrants can check their status online at www.dvlottery.state.gov/ESC. Entrants will need their confirmation numbers, last (family) names, and year of birth to check their statuses.
Those selected in the lottery will be given instructions on how to apply for visas for themselves and eligible family members. Entries for the 2016 fiscal year were accepted from Oct. 1 to Nov. 3.
U.S. Citizenship and Immigration Services has completed data entry for all H-1B cap-subject petitions selected in this year’s computer-generated lottery, the agency announced today.
USCIS received nearly 233,000 H-1B cap-subject petitions during this year’s filing period, which began April 1. Annual quotas for H-1B visas are set at 65,000 for undergraduate-degree holders plus an additional 20,000 for foreign nationals with a master’s degree or higher from a U.S. university.
Having completed data entry, USCIS will now begin returning H-1B petitions that were not selected. USCIS said that because of “the high volume of filings, the time frame for returning these petitions is uncertain.”
The agency asked that petitioners not inquire about the status of their petition until they receive a receipt notice or their unselected petition is returned.
BAL Analysis: Many employers will be forced to consider alternative visa options or overseas assignments for high-skilled employees due to the high number of petitions rejected because of the cap. Employers are encouraged to work with their BAL attorney to explore alternatives for their current job candidates as well as to map out long-term options for their workforce.
Sen. Chuck Grassley, R-Iowa, has introduced legislation to require all U.S. employers to use E-Verify to check the work eligibility of their employees.
A House version of Grassley’s bill, the Legal Workforce Act (H.R. 1147), passed the lower chamber’s Judiciary Committee on a party-line vote in March, but has not been brought to the House floor. The legislation has support among many GOP lawmakers, but has drawn opposition from Democrats and some Republicans who argue that it could harm the agriculture sector of the economy.
E-Verify is a voluntary program for most employers. It allows employers to compare workers’ I-9 employment eligibility information against federal data to make sure they are legally able to work in the country.
Grassley introduced his bill, the Accountability Through Electronic Verification Act of 2015 (S. 1032), on April 21, saying that E-Verify “assists businesses that want to comply with immigration laws” and protects work opportunities for documented workers.
Grassley’s bill would make E-Verify mandatory for all employers within one year of enactment and mandatory within 30 days for employers deemed “critical” by the Department of Homeland Security. It would also stiffen penalties for employers who knowingly hire undocumented immigrants.
The bill’s fate is uncertain. The House version drew the rebuke of a bipartisan mix of 61 House members in a March 26 letter to Speaker John Boehner, R-Ohio, and Judiciary Committee chair Bob Goodlatte, R-Va.
“While we agree with the need to stem the flow of illegal immigration and are supportive of measures like E-Verify, implementing mandatory E-Verify without also enacting strong reforms ensuring our farmers have access to a legal, reliable and stable workforce will cause serious problems for our domestic agricultural industry and our nation’s economy,” the letter said.
E-Verify continues to grow across the country, with approximately 580,000 American employers enrolled as of the beginning of March.
BAL Analysis: Efforts to make E-Verify mandatory face an uncertain road ahead. The House bill has already drawn some opposition, and the Senate bill would require bipartisan support. BAL will continue to monitor the legislative developments in Congress and will provide updates as information becomes available.
A House bill was introduced yesterday that would make it much easier for some foreign Ph.D. degree holders in the U.S. to obtain a work visa and green card.
The “Stopping Trained in America Ph.D.s from Leaving the Economy” (STAPLE) Act would exempt Ph.D. degree holders in science, technology, engineering and mathematics from caps on H-1B visas and employment-based green cards.
Currently, H-1B visas are capped at 65,000 annually and there is an exemption from the cap for the first 20,000 petitions for individuals with masters degrees or higher.
The bipartisan bill, co-sponsored by Rep. Erik Paulsen, R-Minn., and Rep. Mike Quigley, D-Ill., aims to retain high-skilled foreign graduates.
“America’s leadership in research and technology is being threatened by our current immigration system that sends foreign-born, but U.S. educated, students back home to compete against us after earning advanced degrees,” Quigley said in a statement.
The STAPLE Act was originally introduced in 2009 and has been reintroduced several times since then, most recently in 2012 when it was defeated in the House by a vote of 257-158. The bill will now be assigned to committee for additional consideration.
A bill introduced in the House last week would allow foreign business owners in the U.S. on E-2 treaty investor visas to apply for permanent residency after 10 years.
E-2 visas allow foreign citizens of countries that have a treaty with the U.S. to invest in or start a U.S. business. E-2 visas are initially granted for two years and may be renewed in two-year increments. While the number of renewals is unlimited, E-2 visa holders must maintain an intent to leave when their visas expire and may not apply for a green card. Additionally, children of E-2 treaty investors must leave the U.S. or apply for another type of visa when they turn 21.
H.R. 1834, introduced by David W. Jolly, R-Fla., would allow E-2 visa holders to apply for permanent residency after 10 years and permit their children to remain in the U.S. until age 26 and apply for work when they are 18.
“Those who enter our country legally on a nonimmigrant E-2 visa come from all over the world to start a business in our country, bringing with them the entrepreneurial spirit to start businesses and fully integrate into our communities,” Jolly said. “Without an opportunity for permanent residency these visa holders cannot take the next step in carrying out the American dream that initially brought them to the United States.”
The bill is cosponsored by Rep. Dennis Ross, R-Fla., and Rep. Paul Cook, R-Calif.
A lawsuit has been filed that seeks to stop the Department of Homeland Security from implementing the new regulation that allows H-4 dependent spouses of H-1B employees to apply for work authorization.
The complaint, filed April 23, alleges that DHS exceeded its authority in promulgating the rule and asks a federal court to vacate it and permanently enjoin the agency from issuing work authorization to H-4 spouses. The rule is scheduled to take effect May 26.
The organization that filed the lawsuit, Save Jobs USA, claims its members will be harmed by the H-4 regulation because the rule will increase the number of H-1B and H-4 workers who are in direct competition with them for jobs.
The H-4 regulation extends work authorization to certain H-4 visa holders whose H-1B spouse has an approved I-140 petition or has been granted an extension of stay beyond the initial six-year H-1B period.
Save Jobs USA asserts that it has standing to sue based on three of its members who are former computer workers who lost their jobs. According to the complaint, the three individuals “have all been replaced by H-1B workers and remain in competition with H-1B workers, and soon H-4 visa holders, in the job market.”
The legal claims are that DHS lacked statutory authority to grant work authorization to H-4 visa holders, ignored labor protections that require the Labor Department to certify that a foreign worker will not adversely affect American labor conditions, reversed longstanding policy not to allow H-4 spouses to work and failed to gauge the impact of the rule on American workers.
The lawsuit points out that DHS has said the rule intends to help businesses retain H-1B workers and that an estimated 179,600 spouses may be eligible to apply for work authorization under the H-4 rule.
“The H-4 rule is thus designed to attract additional H-1B workers to compete with Save Jobs USA members and to retain competitors that would otherwise leave the market,” the lawsuit alleges.
The case is Save Jobs USA v. U.S. Department of Homeland Security, U.S. District Court for the District of Columbia, C.A. No. 1:15-CV-615. The complaint can be viewed here.
BAL Analysis: To succeed in blocking the rule, the group will have to prove standing based on actual, not hypothetical, injury that it can show is caused by the H-4 regulation. The lawsuit closely mirrors a legal challenge by a related group of tech workers that seeks to overturn a 2008 regulation that allows F-1 students to obtain work authorization. That suit was filed last March and remains pending.