Labor Immigration Law

United States Labor Immigration Law News and Analysis

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L-1B Petition Denial Rates Skyrocket (Especially for Indian Nationals)

A recent report by the National Foundation for American Policy (NFAP) focused on the denial rates for the L-1B visas.  In its March 2015 report NFAP analyzes denial rates over a number of years and for a number of different beneficiaries, from a variety of countries.   The conclusion is that the denial rate for L-1B petitions is at an all-time high, with about 35% of all L-1B petitions being denied.   For Indian nationals, the L-1B denial rate is an astonishing 56%.

Notable Points of the L-1B Denial Analysis

The overall denial rate for the 2014 fiscal year (FY2014) is 35%, a five-fold increase from the 7% denial rate in FY2007.   The denial rate for L-1B petitions to transfer employees from Indian origin is 56%,  while it is 13% for all nationals of all other countries.   Canadians are at 4%, British nationals are at 16%.

L-1B extension petitions for workers who are already in the U.S. (and were granted L-1B once) have a higher denial rate (41%) than initial applications  (32%)   There is no clear explanation or reason behind this — presumably, once USCIS has granted an L-1B visa initially, an extension should be easier (in relative terms) to get approved.   Apparently, this is not the case.

Requests for Evidence (RFE)s have continued to be at a very high rate – 45% of all L-1B petitions face an RFE, often requiring a very lengthy and time-consuming response.   Some may think back to FY2004 when only 2% of the L-1B petitions faced an RFE.

Conclusion

The NAFP analysis, based on date obtained from USCIS under the Freedom of Information Act (FOIA), provides a fairly detailed overview of the challenges ahead of L-1B employers, especially those who wish to bring foreign employees from India.    Our office witnesses first-hand the extremely time-consuming RFEs for a number of L-1B petitions and we share the concerns of our L-1B employer clients who face severe uncertainty in bringing key personnel to the U.S. on L-1B.

The concerns are particularly acute over the last two to three years where the annual H-1B cap has been exhausted over the first five days and has limited the options for bringing qualified foreign employees to the United States.  With the H-1B cap gone in five days and extremely challenging L-1B  adjudication process, foreign employers find in increasingly difficult to be able to bring talent to the U.S.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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Visa Bulletin Updates and Predictions from Mr. Oppenheim (March 2015)

Our office closely monitors not only each monthly Visa Bulletin but also any developments and updates from here in Washington, DC which may give us some idea on upcoming movements and surprises.   Our goal is to share any and all credible information with our clients and readers in order to allow proper planning and to set expectations as realistically as possible.

Mr. Charles Oppenheim, who is the Chief of the Visa Control and Reporting Division at the U.S. Department of State and the person who prepares and publishes the monthly visa bulletin, has provided some thoughts and his expectations for the upcoming few months’ Visa Bulletin movements.    These comments are as of March 13, 2015.

EB-2/EB-3 China

The significant retrogression in EB-3 China in the April 2015 Visa Bulletin has essentially put an end to the EB-3 China “downgrade” trends which saw many EB-2 China applicants downgrade their case to EB-3 in order to take advantage of the more favorable EB-3 China cutoff dates.    With the retrogression in EB-3 China we see a more “natural” positioning of the EB-2 and EB-3 China cutoff dates.

While our office has been helping a number of EB-2 China applicants downgrade to EB-3 in order to take advantage of the dates over the past few months, we have always cautioned that this kind of downgrade is not for everyone and that over long-term, EB-2 China would still be the better category for ultimately the fastest green card approval.

If demand in EB-2 China does not increase significantly as a result of the April 2014 forward movement, it is expected to see another notable forward movement in EB-2 China in the next month or two.

EB-5 China

Retrogression is likely to occur no later than June 2015.

EB-2 India

EB-2 India has advanced significantly over the last two months – 16 months in the March 2015 Visa Bulletin and eight months in the April 2015 Visa Bulletin.    On top of this, Mr. Oppenheim expects that India would advance at a steady pace for another couple of months before a possible slowdown towards the end of the fiscal year (which ends September 30, 2015).    We read this to mean that forward movements of about 4-6 months per Visa Bulletin are likely over the next one to two months.

EB-3 India

Unfortunately, Mr. Oppenheim cannot share much good news as he expects EB-3 India to move by one to (possibly) two weeks per month.   The reason is that there is a significant amount of preadjudicated EB-3 India I-485 applications (more than 9,100) with a priority date before January 1, 2005 (when the annual limit is 2,875 immigrant visas).   Therefore, we expect very slow forward movement in EB-3 India.

EB-3 ROW, Mexico and Philippines

After the notable forward movement in April, Mr. Oppenheim expects that there will be more significant forward movement in the May Visa Bulletin.   Great news for EB-3 applicants from these countries.

While it is not expected that EB-3 ROW would become current any time soon, it is likely for this category to get into 2015 – which means that this category will be close to current and, in effect, for many, by the time candidates obtain PERM and I-140 approvals, they may already be current and be able to file their I-485 adjustment applications.    We call on all EB-3 applicants to either start their PERM applications soon or, for those who  have applications underway, to be ready to take advantage of a possible current priority date over the next few months.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.   Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.

We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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April 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 China Significant Retrogression

The U.S. State Department has just released the April 2015 Visa Bulletin which is the seventh Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant eight-month forward movement in EB-2 India and the seven-month forward movement in EB-2 China.    EB-3 also moves forward nicely with the notable exception of EB-3 China which goes back by 9 months.

Summary of the April 2015 Visa Bulletin – Employment-Based (EB)

Below is a summary of the April 2015 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India moves forward significantly by eight (8) months to September 1, 2007.  EB-2 China moves forward by seven (7) months to April 1, 2011.
  • EB-3 ROW, Mexico and Philippines advance by four (4) months to October 1, 2014.   EB-3 China retrogresses by about nine (9) months back to January 1, 2011 (from October 22, 2011) while EB-3 India  advances by only one (1) week to January 8, 2004.
  • The “other worker” categories for ROW, Mexico and Philippines advance by four  (4) months to October 1, 2014.   EB-3 China remains unchanged at August 15, 2005 while EB-3 India  advances by one (1) week to January 8, 2004.

Summary of the April 2015 Visa Bulletin – Family-Based (FB)

Below is a summary of the April 2015 Visa Bulletin with respect to some family-based categories:

  • FB-1 ROW, China and India all remain unchanged at August 1, 2007.   FB-1 Mexico moves forward by one (1) week to November 1, 1994 while FB-1 Philippines remains unchanged at February 1, 2005.
  • FB-2A moves forward again, but by not as much – it moves forward by five (5) weeks to August 1, 2013 for ROW, China, India and Philippines.  It also moves forward by six (6) weeks to July 8, 2013  for Mexico.

Another EB-2 India Significant Forward Movement But By Not as Much as Last Month

This month’s Visa Bulletin brings another significant forward movement in EB-2 India of eight months; however, it is not as significant as the forward movement in last month (April) visa bulletin (of sixteen months).  Overall, however, EB-2 India has advanced by two years over the last two months so this is certain a good sign.       EB-2 India applicants with a priority date earlier than September 1, 2007 can now move forward (or expect news, hopefully approval) with their applications.

The Department of State had indicated that EB-2 India may move forward by four to six months per Visa Bulletin over the next few months so we expect the forward movement in EB-2 India over the next few months to be similarly moderate.

EB-2 China Advances while EB-3 China Retrogresses Significantly

While EB-2 China advances nicely by seven months in this Visa Bulletin, EB-3 China moves back by almost ten months to January 1, 2011.   This retrogression is caused by the high number of EB-3 China filings over the last weeks and months, caused by the rapid advancement in the EB-3 China date over the recent months.    We had noted in our earlier Visa Bulletin alerts that the demand in EB-3 China is expected to rise with the forward date movement and it now seems that the Department of State “sees” sufficient demand to stop the rate of filings by moving back the cutoff date.

It is important to note that EB-3 China applicants who have a cutoff date which is current now and who would no longer be current as of April 1 to consider filing their I-485s immediately (if they are in the US) or take other steps to take advantage of the current priority date.   EB-3 China candidates who have a priority date between October 22, 2011 and January 1, 2011 will be affected — please contact us for a consultation and analysis of your personal case situation.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the April 2015 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the April 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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H-4 Spouse EAD: What Kind of Employment is Permitted? Can I Run My Own Business?

As our office is gearing up for May 26, 2015 when the first H-4 Spouse EAD applications under the new rule can be filed, we are receiving many questions and concerns as to what kind of employment would be permitted by the H-4 Spouse EAD, once the actual work permit is approved.    The quick answer is, “Any employment should be permitted.”  Here are some details.

Background of the H-4 Spouse EAD Rule

The new H-4 Spouse EAD rule allows certain H-4 spouses to apply for and obtain a work permit which would allow them to work in the United States while they are waiting for their H-1B spouse’s permanent residency (green card) process to be approved.   Not all H-4 spouses are eligible:  only spouses of H-1B workers who have an approved I-140 petition OR have a pending PERM or I-140 petition for more than 365 days and have extended their H-1B past their six-year H-1B limit are eligible.   More on the rule, eligibility and other details.  The earliest an H-4 Spouse EAD application can be filed is May 26, 2015.

EAD Must be Approved and Valid for Employment to be Authorized

It is important to note that the EAD work permit must be approved and valid for the H-4 spouse to be authorized to work.   This means that a pending EAD application or expired EAD work permit do not authorize employment.   As a result, careful planning of the filing process, especially for renewals, is essential.

What Kind of Work is Permitted?

The EAD work permit, once approved, is unrestricted.  It allows employment in any sector, in any job, without regard to the H-4 spouse’s education, experience or skills.   There is no requirement that the position be “skilled” or “professional.”    There is no requirement that the H-4 spouse must have a minimum degree.   There is no requirement that the job must be permanent or full-time.    Part-time positions are permitted.    Taking contract-based, temporary or independent contractor employment opportunities is also allowed with the H-4 Spouse EAD work permit.

Self-Employment or Running Own Company on H-4 Spouse EAD Is Permitted

The H-4 Spouse EAD work permit would also permit self-employment which would include being engaged as an independent contractor (1099) or running own business as a sole proprietor.    Similarly, the H-4 Spouse EAD rule allows its holder to establish, own and operate a business such as a corporation or a limited liability company.

Minimum Salary Requirements

There are no specific minimum salary requirements for an H-4 Spouse EAD worker other than the federal and state minimum wage laws when the employment if structured as regular (W-2) employment.   Some people mistakenly believe that the H-1B prevailing wage must be paid for the employment of an H-4 spouse who has an EAD under the new rule — this is incorrect.   While the H-1B prevailing wage requirement still applies to the H-1B worker spouse, the H-4 Spouse does not have to be paid the prevailing wage as long as they are paid the applicable federal/state minimum wage.

Conclusion

The H-4 Spouse EAD work permit is very flexible and allows many different types of employment, including self-employment and owning and operating a business.   In fact, this has been one of the government’s motives in proposing this rule and allowing for unrestricted EAD — stimulating the U.S. economy by allowing qualifying H-4 spouses to work in the field of their qualification, including running companies who would hire other employees.   The H-4 Spouse EAD, however, must be valid at all times for employment to be authorized.   This makes it critical to plan very well for filings and extensions to avoid any gaps in employment authorization which, in turn, may cause employment without authorization and violation of the H-4 status.

We will continue to provide information on this rule as it becomes available.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

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Very Short and Busy H-1B Cap Filing Season Expected: April 1st to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B Cap Filings

As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a busy and very short H-1B filing season.     According to our sources (which includes clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas.  This means that there is almost a guarantee that there will be a random lottery to allocate the  available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap)  among all filings received in the first five business days of April.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most,  in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 7th.

What is the Ultimate Last Day to Start H-1B and Make It Under the Cap?

We are often asked when is the absolute last day when an H-1B case can be started and filed under the H-1B cap.    The answer is that it varies, depending on many circumstances.    If the employer can plan ahead and file an LCA early (or now), then a new (or confirmed) candidate’s H-1B petition can be started as late as April 1st and still be filed before April 7th.    The LCA is the step of the process which takes the longest to prepare and certify – often 7 business days.  New employers may also need to do a Federal Tax ID (FEIN) verification process (2-3 days) before an LCA is filed.   As a result, while it may be possible to start a new H-1B case as late as March 24, 2015,  there are many possible risk factors which would cause a late H-1B case to be delayed and miss the H-1B cap.

Our strong recommendation to employers is to consider filing all LCAs (even for planned but unconfirmed positions) over the next few days to keep the best possible options for a timely H-1B cap case filing.    Our office is happy to guide you on the timing process to give you the highest possible chance of making the cap.

H-1B Applications Filed Over the First Five Business Days in April Will Be Subject to Random Lottery

Assuming the H-1B cap is reached by April 7th, as expected, all H-1B filings which are received over the first five business days in April will be subject to  a random lottery to determine which of these H-1B applications would be counted and included under the cap.   This means that, as of now, we expect all H-1B cap cases filed over the first business five days in April to be subject to the random lottery.  Last year, in April 2014, there was also a random lottery to allocate the approximately 180,000 H-1B filings among the total of 85,000 H-1B visas.

H-1B Filings Not Picked by the Lottery or Filed After the Cap is Reached Will be Rejected and Returned

H-1B cases filed over the first five business days in April but not picked by the random lottery or H-1B cases filed after April 7th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Premium Processing Clock for New H-1B Cases to Start At a Later Date

In connection with the high level of H-1B filings, USCIS is likely to change the way they would process premium processing H-1B cases filed under the H-1B cap.    Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.      For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing,  USCIS is likely to indicate that that for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, the premium processing “clock” will begin later in April, most likely around April 15th.     This means that even for cases filed on April 1, 2015, the premium processing 15-day response window would not start until later in April.   Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) should not be affected.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  this is the last call for starting an H-1B case with a chance of filing under the H-1B cap.

We will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us immediately.

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Notes from USCIS Conference Call on H-4 Spouse EAD; Recording Available for Download

Our office just completed participation in the very-busy USCIS conference call to discuss and answer questions about the upcoming H-4 Spouse EAD rule.   We are happy to share our immediate notes and reactions from the call to our readers.   We also have upcoming engagement options for our attorneys to provide more information and answer further questions about the process.

Our Notes from the H-4 Spouse EAD Conference Call

I-140 Petition from Former Employer.   One of the biggest questions about the H-4 Spouse EAD rule was answered – according to the panelists from USCIS, an approved I-140, even from a former employer, would permit an H-4 Spouse EAD when the H-1B spouse has started working for a new employer and the new employer has not obtained an approval of the new I-140.     This is great news and was one of the biggest unanswered questions about the rule.

However, the panelists specifically indicated that a withdrawn I-140 petition by the former employer means that there is no longer “approved I-140″ and, as a result, there is no longer H-4 Spouse EAD eligibility.

Concurrent I-539 and -765 Applications Allowed.   H-4 Spouse EAD applications (on Form I-765) can be filed concurrently with I-539 and even I-129 petitions, when the circumstances permit.    It is expected that in many cases both the I-539 and the I-765 applications will be adjudicated at the same time.

H-4 EAD Validity.   The term of H-4 Spouse EAD card validity is expected to be the same as the underlying H-4 status.   The EAD will be valid from the date of approval until the H-4 status expiration date.    But a valid EAD is required at all times to work – so proper planning for the extensions of status and EAD is key.    The H-4 Spouse EAD will be valid for employment with any employer and there is no requirement that an H-4 Spouse EAD holder be employer at all times.

EAD Is Not a Travel Document.   The EAD itself would not permit travel to the U.S.  An H-4 spouse who has an EAD will need an H-4 visa stamp in order to travel back to the U.S.   The EAD only allows employment during its validity period.

Mechanics of the Application Process.   New Form I-765 with instructions will be released over the next days or few weeks.  The application will be filed on paper (no electronic filing, at least for now) and must include full documentation of eligibility.   In cases where certain documents are not available, providing as much relevant information as possible is key in order to allow USCIS to look up information about a case.   The application does not anticipate (for now) having to do biometrics – instead, the application will request submission of photos.

Unanswered Questions.   There were a few questions about some fairly complex situations which USCIS took under advisement and we should expect more information in future USCIS communications about the H-4 Spouse EAD rule.    Our office will certainly provide more information about once we have any news.

Opportunities to Learn More and Discuss With Our Attorneys

To accommodate the great demand of clarification and create a public forum for this, our attorneys will be conducting series of Q&A events focuses solely on the H-4 Spouse EAD rule, as follows:

  • Online Chat – Thursday, February 26, 2015 at 3:00 PM EST – free online chat session with Capitol Immigration Law Group attorneys to discuss the H-4 Spouse EAD rule and answer questions about the rule.    Attend the live chat session.
  • Webinar – Tuesday, March 3, 2015 at 1:00 PM EST – free webinar with a more detailed and formal presentation and discussion of the rule, its criteria, mechanics, requirements and challenges.   Register for the free webinar (space is limited).

USCIS H-4 Conference Call Recording

For those who were not able to attend the call but wish to hear a recording, please follow this link.

Conclusion

We will continue to provide information on this rule as it becomes available.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

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H-4 Spouse EAD Rule – Online Chat and Webinar Q&A Opportunities

Since the H-4 Spouse EAD rule announcement yesterday, our office has been receiving a number of questions and inquiries about the rule.  the rule.  For example, many people are interested to know whether the approved I-140 petition, which is one of the eligibility factors, must be from a current employer or it can be from a former employer.    Our office has been analyzing the full rule text and comments and we have been utilizing our resources to gather more information about this and other questions regarding the rule.

To accommodate the great demand of clarification and create a public forum for this, our attorneys will be conducting series of Q&A events focuses solely on the H-4 Spouse EAD rule, as follows:

  • Online Chat – Thursday, February 26, 2015 at 3:00 PM EST – free online chat session with Capitol Immigration Law Group attorneys to discuss the H-4 Spouse EAD rule and answer questions about the rule.    See the archived chat transcript.
  • Webinar – Tuesday, March 3, 2015 at 1:00 PM EST – free webinar with a more detailed and formal presentation and discussion of the rule, its criteria, mechanics, requirements and challenges.   See the archived webinar.

In the meantime, our office will continue to post articles on our website and newsletter on this and related topics.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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Final H-4 Spouse EAD Rule Announced – Becomes Effective May 26, 2015

After months of waiting and anticipation, USCIS has finally announced that effective May 26, 2015, USCIS will begin accepting applications for I-765 Employment Authorization Document (EAD) applications by certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.

Who is Eligible to Apply for EAD?

H-4 spouses who are eligible for the EAD under this rule are:

  • spouses of H–1B workers if the H-1B worker is a beneficiary of an approved Immigrant Petition for Alien Worker (Form I–140);  or
  • spouses of H–1B workers if the H-1B worker has been granted an extension of their authorized period of admission in the United States under the section 106(a) and (b) of American Competitiveness in the Twenty-first Century Act of 2000 (AC21).    Section 106(a) and 106(b) of AC21 allow H-1B status extension of the H-1B worker is the beneficiary of a PERM Labor Certification or an I-140 petition which has been pending for more than 365 days.

It should be noted that the rule explicitly states that H-4 dependent children will not be eligible for EAD under this rule.

Mechanics of the H-4 Spouse EAD Application Process

The rule would add eligible H-4 spouses to the list of nonimmigrants eligible to apply for an employment authorization document (EAD).    The application will be filed using the current Form I-765, together with filing fees ($380 as of the date of this article), photos and supporting documents to establish eligibility for this new class of EAD.

Earliest Filing Date.   The earliest date USCIS will accept EAD applications pursuant to this rule is May 26, 2015.    Applications filed before this date will be rejected.       However, applications can be prepared in advance and our office will be happy to do so for a timely filing as soon as the filing window opens on May 26, 2015.

EAD Validity and Extensions.   As with most other EAD classes, employment would be authorized only after the EAD has been approved and only during the validity of the approved EAD document.    The  rule mentions that USCIS is considering that such EADs will be issued with validity of up to two years, recognizing that even if USCIS were to issue a longer EAD validity period, it cannot exceed the applicant H-4 spouse’s H-4 status validity period.      Extensions can be filed up to 120 days in advance of expiration of the current EAD term (and assuming continuing H-4 status and extension eligibility) and EAD extensions can be (and perhaps should be) filed together with H-4 status extensions.

Concurrent H-4 Status and H-4 EAD Applications Permitted.    The rule allows specifically for the concurrent filing of I-539 applications seeking to either change to H-4 status or to extend H-4 status together with the I-765 EAD application.   This is great news because it allows for the concurrent processing of an H-4 status with a work permit application.    Without the concurrent filing option, an H-4 applicant would have to wait for the H-4 status to be approved, and then file a separate EAD application and wait for another 2-3 months for the actual work authorization.     In cases where this is possible, we encourage concurrent filing of the I-539 H-4 status application and the I-765 EAD applications.

Documentation of Eligibility.   Since EADs under this rule would be issued only to a limited set of H-4 spouses, the EAD application would require enhanced documentation to show eligibility.    In addition to the application form, fee and required passport photos, the EAD application would seek evidence that the H-1B nonimmigrant spouse is beneficiary of an approved I-140 petition or has PERM Labor Certification or I-140 petition filed more than 365 days prior; in addition to evidence of the applicant’s H-4 status validity and duration.

Full Text of the Rule

For those of our clients and readers who want to dig into the rule, it can be accessed online.

More Information and Opportunity to Ask Questions

Our office will be holding a free webinar on this rule, its requirements and challenges.   The webinar is scheduled for Tuesday, March 3rd at 1 pm eastern time.   Please register early to claim your spot – registration and attendance are free but space is limited.

H-4 Spouse EAD Attorney Service Filing Quote

Our office has been monitoring closely this rule since it was announced in May 2014 and we are ready to start accepting applications for filing on or after May 26, 2015.     If you would like one of our attorneys to review your case and provide a free and no-obligation quote for our services, please complete this brief request H-4 Spouse EAD attorney quote form.

Conclusion

We welcome DHS’s publication of the new H-4 spouse EAD rule and we believe that many eligible H-4 spouses would benefit from a permission to work while waiting for their spouses’ green card to be approved (several years in some cases).

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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How to File an H-1B Cap Petition When the Current Degree is Still in Progress?

DiplomaAs the H-1B cap filing season is well underway and as the filing day of April 1st is approaching fast, a common question by H-1B employers or H-1B candidates is whether an H-1B cap petition can (or should) be filed when the foreign national employee is still completing their degree program and when the degree will not be completed by April 1st.   The short answer is that while the H-1B regulations require a degree be completed in order to be used for H-1B filing, there are ways to use previous or partially-completed degree to qualify for the H-1B cap.   This option becomes increasingly important as we are facing a situation where, due to high demand, many H-1B candidates will not be selected under the H-1B cap lottery and being able to file a few times, over two or three H-1B cap seasons, becomes a critical advantage.

Background:  Supporting H-1B Employee’s Degree Must be Completed by April 1st

The general rule with respect to using educational degrees for H-1B cap filings is that a degree must be completed before April 1st in order for this degree to be usable to qualify its holder for H-1B work visa filing under the H-1B cap.   USCIS has clarified that they would accept degrees as completed when all of the courses and degree requirements have been completed by April 1st and that the only outstanding item remaining is the actual graduation ceremony (which is usually later in the spring, most often in May).

While it is possible that some degree requirements can be completed by April 1st (in which case the degree can be used to qualify for the H-1B cap), most often a degree is not completed by April 1st.  In this kind of situations, the foreign national (and their employer) does not normally consider the possibility of an H-1B cap filing.  However, there are ways in which this can be done, thereby increasing the attempts an H-1B cap petition can be filed, selected under the cap and ultimately approved.

H-1B Cap Filing Based on Prior or Partially-Completed Education

Even when the degree is not completed by April 1st, all is not lost.    An H-1B petition normally requires that the position require a bachelor’s degree or higher and that the foreign worker have such a degree.   So, if a master’s degree student is working on completing their master’s degree but the degree requirements are not completed by April 1st, and assuming the undergraduate degree is related to the offered position, the H-1B employer can still file a cap H-1B petition on behalf of the foreign national.   Yes, the H-1B cap will have to be under the general (65,000 visas) cap as opposed to the master’s (additional 20,000 visas) cap; but it still allows a filing and an extra shot at the cap lottery.

Additionally, USCIS accepts work experience in lieu of missing education.  Three years of relevant experience can be used to supplement each missing year of education.  So if an foreign worker has three years of completed education but at least three years of related work experience, it may be possible to make an equivalency argument for a bachelor’s degree.   This may even allow a foreign student who is pursuing their bachelor’s degree in the U.S. and who has at least three years of relevant experience to make a case for H-1B cap filing on April 1st.

Conclusion

With the high anticipated demand during the H-1B cap season and the anticipated lottery, it becomes increasingly important for H-1B employers and their H-1B visa candidates to take advantage of any available opportunity to increase their chances to ultimately get selected under the H-1B cap.  Being able to file under more than once, in two or three, H-1B cap lottery iterations becomes one of the key (and sometimes overlooked) ways to boost one’s chances.

We are hopeful that this article would allow at least some H-1B employers and workers to evaluate the opportunity of filing for H-1B under this year’s cap even if the degree is still in progress and will not be completed by April 1st.    Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Current PERM Processing Times (February 6, 2015)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of February 6 2015.

Current PERM Processing Times

This month does not bring much change in the PERM processing times – regular PERM cases still take around five months.     The processing time of PERM applications in audit increases by one month compared to our prior monthly report.

The processing times, as reported by DOL, are as follows:

  • Regular processing: September 2014.  DOL is processing PERM applications with priority dates of September  2014.  There is no change in the expected duration of a PERM case compared to the January 2015 report.    Accordingly, regular PERM processing times should be around five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    The PERM processing times have remained steady at five months — we hope that DOL will be able to decrease their regular PERM processing times over the next months.
  • Audited applications: June 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of June 2013.  There is a delay of one additional month in the expected PERM audit review time compared to last month’s report.    Accordingly, audited PERM applications are processed approximately 20-21 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): February 2015.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in February 2015.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The February 2015 PERM processing times report shows that the PERM processing times remain largely unchanged over the last couple of months.  We had noticed gradual decrease in the PERM processing times earlier in the year; however, the last one or two monthly reports suggest that the processing times remain steady.      We are hopeful that the trend of improvement in the processing times would continue in the next months.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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