Labor Immigration Law

United States Labor Immigration Law News and Analysis

News Alert Articles

USCIS Starts Issuing Approvals and Production of H-4 Spouse EAD Cards

One of the most frequent questions our office gets since and even before May 26, 2015 when the H-4 Spouse EAD filing window opened has been, “How long would it take to get the H-4 Spouse EAD approved?”    Because the H-4 Spouse EAD is a brand new program and especially due to the really high anticipated volume of H-4 Spouse EAD applications, we have not been able to provide a firm answer.    USCIS had indicated that their goal would be to issue EAD approvals within 90 days of filing.      But as our office is starting to receive H-4 Spouse EAD approvals and notifications of approvals, we are starting to get at least some preliminary idea of the processing times. Read more

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Visa Bulletin Updates from Mr. Charles Oppenheim (June 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 June 12, 2015.

EB-2 Worldwide (ROW)

Mr. Oppenheim reiterated that there has been a significant increase in the demand of visa numbers in this category with demand far in excess of the historical patterns of the previous five months.    As an example, Mr. Oppenheim indicated that there was 80% demand increase from February to March 2015 and demand increased more than 100% between February and April 2015.     Despite this significant increase in demand in EB-2 ROW visa numbers, it is not expected at this time that there will be a cutoff date for this category and it is likely to remain current.

EB-2/EB-3 India

As a result of the significant forward movement in EB-2 India earlier this year, additional forward movement for the next few months is unlikely mainly due to EB-3 to EB-2 upgrades.  Additionally, because demand for EB-2 ROW has more than doubled unexpectedly over the past few months, EB-2 India cut-off date had to be held steady in the July 2015 Visa Bulletin. Unless there is a significant decline in EB-2 ROW demand, Mr. Oppenheim does not anticipate any forward movement in EB-2 India for the rest of this fiscal year (September 30).

EB-3 India is expected to continue to advance by one to two weeks per month.  This has been the recent trend over the past several months.

EB-2/EB-3 China

Demand in EB-2 China has been steady and gradual forward movement is expected over the next several months.     The EB-3 China cut-off date is expected to remain the same through the rest of the fiscal year (September 30).

EB-5 China

EB-5 China is expected to continue to advance,very likely as far as November 2013 towards the end of the fiscal year.

EB-3/Other Workers Philippines

After the category became unavailable in the July 2015 Visa Bulletin, it is expected to remain unavailable for the remainder of the fiscal year.

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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July 2015 Visa Bulletin – EB-2 India Remains Unchanged; EB-3 Philippines Unavailable

The U.S. State Department has just released the July 2015 Visa Bulletin which is the tenth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of any movement in EB-2 India and EB-3 China and that EB-3 Philippines is unavailable.

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

Below is a summary of the July 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 remains unchanged at October 1, 2008.  EB-2 China moves forward by four (4) months to October 1, 2013.
  • EB-3 ROW and Mexico advance by six (6) weeks to April 1, 2015.   EB-3 Philippines is unavailable.   EB-3 China  remains unchanged at September 1, 2011 while EB-3 India  advances by only one (1) week to February 1, 2004.
  • The “other worker” categories for ROW and Mexico advance by six (6) weeks to April 1, 2015 while Philippines is unavailable.     Other workers China remains unchanged at January 1, 2006 while India  advances by only one (1) week to February 1, 2004.
  • EB-5 China advances by four (4) months to September 1, 2013.

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

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

  • FB-1 ROW, China and India move forward by one (1) month to October 1, 2007.   FB-1 Mexico remains unchanged at November 15, 1994 while FB-1 Philippines moves forward but by only two (2) weeks to March 15, 2000.
  • FB-2A moves forward again — this month the forward movement is by five (5) weeks to November 8, 2013 for ROW, China, India and Philippines.  It moves forward by five (5) weeks to September 15, 2013  for Mexico.

EB-2 India Unchanged – Is Any Forward Movement Likely for the Rest of the Fiscal Year?

After several months of nice forward movement, this month’s Visa Bulletin lack of movement in EB-2 India may be disappointing to many EB-2 India applicants who were hoping for 2009 or 2010 cutoff dates by the end of the fiscal year.

EB-2 India applicants with a priority date earlier than October 1, 2008 can now move forward with their applications (or expect approvals if they have already filed their I-485 applications).    Over the last few months, in our Visa Bulletin reports we have been cautioning that the rate of forward movement is slowing down, suggesting that it may eventually stop or even retrogress.      The fact that the Department of State is not advancing EB-2 India this month is an indication that they have sufficient applications on file to use the available visa numbers for the remainder of the fiscal year.    However, as we are getting into the final two months of the fiscal year, it is possible to see additional forward movements in the August and September 2015 Visa Bulletins to accommodate any additional visa numbers who may be made available from other preference categories.

EB-2 China Advances Significantly; EB-3 China Moderate Forward Movement

EB-2 China continues to advance this month.  This month’s forward movement of 4 months, combined with last couple of months’ movements, are among the more significant movements in EB-2 China for some time.   EB-3 China, on the other hand, seems to experience significant demand and, as a result, there is no movement this month.

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 is trying to moderate the demand by keeping the date steady.

EB-3 Philippines Unavailable

The significant demand in EB-3 for Philippines has caused the Department of State to move back the date significantly over the last few months and this month they are making this category “Unavailable.”   This means that there are no visa numbers available for EB-3 Philippines during July 2015.  This means that the government cannot authorize any visas for this category — no green card approvals are likely and no new I-485 adjustment of status applications can be filed (regardless of the priority date).

EB-5 China Cutoff Date

Based on significant demand in the EB-5 category from Chinese nationals, the Department of State had introduced a cutoff date for EB-5 China over the last few months.   The good news is that this month’s Visa Bulletin moves forward the cutoff date by four months to September 1, 2013.

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 July 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 July 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-1B Amendment Required When Changing Jobsites – August 19, 2015 Deadline for Compliance

The April 9, 2015 AAO decision In Matter of Simeio Solutions, LLC (PDF copy) put many H-1B employers (mainly those who place H-1B workers at third-party worksites) in a position to scramble and assess their current level of compliance with the H-1B regulations, as they would be interpreted by USCIS in accordance with the Simeio Solutions decision.      In an attempt to provide more clarity with their compliance approach, on May 27, 2015, USCIS issued Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision which is effective as of the date of publication but while under public comment period.  One of the main goals of the draft guidance is to (1) provide clarification on when an H-1B amendment is required and when it is not required and to (2)  establish a 90-day grace period, until August 19, 2015, for H-1B employers to take the necessary steps to become compliance (file LCA and H-1B amendments).

Our Analysis of the In Matter of Simeio Solutions Decision

Very shortly after the AAO decision came out our office provided a very thorough analysis of the AAO decision – including some historical background, pre-Simeio enforcement trends, together with detailed analysis of the decision.    We invite our readers to read our analysis for more details and background.    We also conducted a highly-attended webinar on the decision and a public archive is available.

USCIS Compliance Guide – When is an H-1B Amendment Required?

An H-1B employer must file an amended H-1B petition if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.   In other words, doing an LCA only for the changed worksite location is not sufficient – an H-1B amendment filing prior to beginning work at the new worksite location is required.

Once the amended H-1B petition is filed, the H-1B employee is allowed to start working at the new worksite location.   The employer can (but does not have to) wait for the H-1B amendment decision before the H-1B employer can start work at the new worksite location.

Practical Considerations.   From practical standpoint, the requirement to have the H-1B amendment filed before the new worksite location placement begins means that the H-1B amendment process should be initiated at least 2-3 weeks (for LCA certification, preparation, signing and filing of the H-1B petition) before the anticipated starting date for the new worksite location placement.     Often third-party client requirements require much faster starting date and this H-1B amendment preparation time should be considered carefully.      Another practical consideration is that an H-1B amendment for a third-party worksite placement requires documentation of the third-party client – letters, contracts, and similar documents – which are often difficult or slow to get.

USCIS Compliance Guide – When is an H-1B Amendment NOT Required?

Helpfully, USCIS has clarified when is an H-1B amendment not required.

The New Worksite Location is Within the Same MSA.  If the new worksite location is within the same MSA or area of intended employment a new LCA is not required and, by extension, no H-1B amendment is required.    It is important to note that the H-1B employer must still post the original LCA in the new worksite location within the same MSA or area of intended employment.

Short-term Placements.   Under certain circumstances, an H-1B employer may place an H-1B worker at a new job location for up to 30 days and, in some cases for up to 60 days (where the employee is still based at the original location), without having to obtain a new LCA for the short-term placement location (20 CFR 655.735).  In these situations, the H-1B employer does not need to file an amended H-1B petition.

Non-worksite Locations.  If the H-1B worker is only going to a non-worksite location, no H-1B amendment is required.   According to USCIS, a “non-worksite location” is:

  1. when the H-1B worker is going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
  2. the H-1B worker spends little time at any one location; or
  3. the job is “peripatetic in nature,” such as situations where their primary job is at one location but the H-1B worker occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive  (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” 20 CFR 655.715.

USCIS Compliance Guide – Grace Period to H-1B Employers to File H-1B Amendments by August 19, 2015

Having provided guidance on when an H-1B amendment filing is required and when it is not required, USCIS confirms that non-compliance with the guidance after the August 19, 2015 grace period ends (i.e. not filing an H-1B amendment when it is required) will cause USCIS to take adverse action against employers and that “H-1B employees would not be maintaining their nonimmigrant status.”

Worksite Changes Before May 21, 2015.   USCIS has advised that for worksite location changes which occurred at the time of the Simeio Solutions decision, employers will be granted a grace period of 90 days, or until August 19, 2015, to file an H-1B amendment petition.     For worksite location changes which occurred before the Simeio Solutions decision (April 9, 2015), USCIS will not take adverse action against the employer or its employees if the employer, in good faith, relied on prior guidance suggesting that an LCA only (and not H-1B petition amendment filing) is sufficient for worksite changes; however,  the H-1B employer must still become compliant by filing an H-1B amendment by August 19, 2015.

Worksite Changes After May 21, 2015.  The grace period does not seem to apply and USCIS will expect that an H-1B amendment be filed prior to the H-1B worker starting at the new worksite location.

Pending H-1B Amendments.   If there is a pending H-1B amendment, USCIS will permit another H-1B amendment to be filed, while an earlier H-1B amendment is pending, allowing the H-1B worker to begin work at the new worksite location upon filing.   However, USCIS is cautioning that in this “bridging” situation, any gaps in status or a denial of a “bridge” petition may result in a denial of the status component of any subsequent H-1B petitions.

H-1B Amendment Denial Does not Automatically Invalidate the Previous H-1B Petition.   USCIS has confirmed a denial of an H-1B amendment petition would not automatically invalidate the prior worksite location’s H-1B petition and if the H-1B worker returns to the prior worksite location, the H-1B worker may be able to continue to maintain valid H-1B status.     In many cases, the sole reason an H-1B worker moves from one location to another is project completion so it is often not possible to return to the prior H-1B worksite location; but when this is possible, this portion of the guidance allows for a backup plan to remain in H-1B status.

Compliance Steps for H-1B Employers

Needless to say, the AAO decision, the USCIS guidance, and the publicity it has received is causing a lot of discussion and anxiety, especially among H-1B employers who place their workers at third-party worksites.     Here are some points for better compliance and less H-1B issues (such as H-1B site visits, visa stamp denials and revocations).

Anticipate and Evaluate Possible New Worksite Locations.    First, any time there is the possibility of a worksite location change during the term of an H-1B petition, the employer (and perhaps the worker) should have a process to anticipate the timing of such worksite location change, including analyzing the actual worksite change location.

H-1B Amendment Not Required if New Worksite Within Same MSA or Within “Normal Commuting Distance”. The AAO decision and the USCIS guidance confirm that if there is a change to a worksite location within the same MSA or within a normal commuting distance, then the LCA remains valid and no H-1B amendment is required (but LCA posting is required).   “Normal commuting distance” can vary depending on the area – but 20, 30 or 50 miles may be considered to be “normal commuting distance.”

File H-1B Amendment “Immediately”.    The regulations require that the H-1B employer “shall immediately notify” USCIS when there is a change in the terms of the petition – essentially, an H-1B amendment must be filed before the new worksite location placement takes place.    Since a new LCA takes up to seven business days, the LCA and the H-1B amendment filing process should be anticipated and started at least 2-3 weeks before the new worksite location placement begins.      Even if this is not possible, the LCA/H-1B amendment should be done as soon as possible.

Late Compliance (H-1B amendment) is Better than No Compliance.   We would like to encourage H-1B employers who have not done the necessary H-1B compliance and who have relied on LCAs only for worksite changes to consider preparing and filing H-1B amendments as soon as possible and before the August 19, 2015 grace period expiration.

What Kind of H-1B Cases Are in Jeopardy? We do not know how much additional scrutiny USCIS would impose on existing petitions for worksite compliance, but mismatch between an actual worksite and H-1B petition is likely to cause H-1B visa stamp delays/denials and, ultimately, consular returns.   Similarly, H-1B site visits are likely to cause problems which would lead ultimately to a Notice of Intent to Revoke and a likely H-1B revocation.     H-1B extensions may also face higher scrutiny to establish current compliance and status as part of the H-1B extension adjudication process.

Conclusion

We would like to iterate clearly that based on recent developments and trends we see,  we are recommending that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite.     Also, employers should evaluate their H-1B workers’ case files to determine whether there are cases which need to be brought into compliance before the August 19, 2015 grace period expires.

We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance.    H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans.   Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

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H-4 Spouse EAD Lawsuit Preliminary Injunction Denied – Filings to Continue as Planned

In late April our office reported on the lawsuit challenging the H-4 Spouse EAD program and we have been monitoring the case over the past few weeks and especially since Thursday of last week when there was a hearing here in Washington, DC on the merits of the plaintiff’s request for a preliminary injunction aiming to stop the H-4 Spouse EAD program.    We are happy to report that Judge Chutkan has denied the plaintiff’s motion for a preliminary injunction against the H-4 Spouse EAD program.

Judge Chutkan’s Opinion

The opinion finds that the plaintiffs have failed to show that they will suffer irreparable harm if the H-4 Spouse EAD rule will become into effect.     Judge Chutkan reasons that, “At this stage, it is entirely speculative whether any H-4 visa holders will ever apply for IT jobs at [the former employer of one of the plaintiffs], IT jobs in California (where the members of Save Jobs reside), or IT jobs at all.”   As a result, the judge concludes that the standard for irreparable harm during a preliminary injunction is not met.

Additionally, the judge discusses that the alleged losses are highly speculative and that they “are not great enough to warrant the extraordinary remedy of a preliminary injunction.”     Finally, the judge finds that there is no imminent harm from the H-4 Spouse EAD rule becoming effective because the H-4 EAD application process is likely to take months and then the H-4 EAD holders may take more time to look for and find jobs.

H-4 Spouse EAD Program Continues on Track (Even Though Lawsuit Remains)

Our office has monitored closely this lawsuit from the time it was filed and we had a fair amount of confidence that the preliminary injunction is unlikely to be granted.     We would like to caution that the fact that the preliminary injunction was denied does not make the lawsuit go away.   The lawsuit continues to remain pending and until the lawsuit is withdrawn or dismissed, the challenge against the H-4 Spouse EAD rule remains in place.

We will continue to provide information on this rule and the pending lawsuit  as soon as we have anything to share.  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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USCIS Releases H-4 Spouse EAD Filing Process Clarifications and Guidance

On the eve of the H-4 Spouse EAD filing window (which opens on May 26, 2015), USCIS  has released a set of clarifications and guidance in connection with the H-4 Spouse EAD process.     Our office has been very active in the H-4 Spouse EAD process ever since the benefit was announced as a proposed rule in the summer of 2014 and we welcome USCIS’s providing guidance on a number of key issues.   Please see our separate article regarding eligibility rules and filing mechanics.

Four Outstanding Questions Answered (Mostly)

About a month ago, on April 23, we released a list of four major unanswered questions to USCIS in connection with the H-4 Spouse EAD process.   Specifically, we raised the question as to whether there would be concurrent H-4 status and H-4 EAD approval, whether there will be a way to deal with the “gap” between non-concurrent approval of H-4 status and H-4 EAD work authorization, whether H-4 EAD would apply for H-1B extensions beyond the sixth-year when part of the current H-1B/H-4 term is still within the initial sixth-year term and whether travel internationally during the time H-4 EAD remains pending would affect the process.

We now have answers to almost all of these questions and we appreciate USCIS’s efforts to provide clarifications.

Concurrently-Filed H-4 Change of Status and H-4 Spouse EAD Applications Will Not be Approved Concurrently

USCIS has confirmed that they would permit concurrent filing of H-4 status (change or extension) applications together with H-4 Spouse EAD applications.   In fact, it is now possible to file concurrently H-1B, H-4 and H-4 EAD applications.

However, USCIS is not expected to be able to adjudicate the H-4 EAD application concurrently with the H-4 (and H-1B, if applicable) change or extension of status applications.  USCIS has indicated that they would first adjudicate the underlying H-4 status application (together with any H-1B petition, if any) and only then they would turn to the concurrently-filed H-4 Spouse EAD application.    In this scenario, the 90-day EAD “clock” would not begin until a decision is made on the H-4 status application.

This suggests that there will likely be a significant work authorization gap between H-4 status approval and H-4 EAD approval.   USCIS, in their FAQ document, specifically clarify that the validity of the H-4 EAD will not be “backdated” from the H-4 status approval date and any employment before the H-4 EAD is approved will be considered unauthorized employment and violation of H-4 status.

These gaps in employment authorization are problematic for applicants who are switching from work-authorized status (such as H-1B, F-1 OPT/CPT and similar) to H-4 and are seeking continued work authorization.       We suggest very careful planning of any such H-4 status and H-4 EAD applications to avoid or minimize the period during which there is likely to be a gap in employment authorization.   One possible solution may be to try to file (significantly) ahead of time and request future starting date of the H-4 status and H-4 EAD.    Please contact us if we can analyze your case and provide options.

The H-4 Spouse EAD Will be Allowed When the Primary H-1B Spouse Is Extending Beyond the Sixth-Year Maximum But When Part of the New H-1B Term Includes Periods of the Initial Six-Year Term

We had raised this question last month and we are glad to see that USCIS addressed it.    USCIS have confirmed that in cases where the primary H-1B and the derivative H-4 period includes a portion of the initial six-year term plus time beyond the six-year term based on PERM or I-140 pending for more than 365 days under AC21 Sections 106(a) and (b), the H-4 EAD validity term will match the validity term of the H-4 status, including any period which is within the initial six-year term.

International Travel When an H-4 EAD Application Remains Pending Is Generally Permitted Without Having to Refile Another H-4 EAD Application After Return to the U.S. As Long as the H-4 EAD Was Filed When the H-4 Holder Was in the U.S.

USCIS has confirmed that the H-4 spouse must be in the U.S. at the time of filing to apply for the H-4 EAD – the reason is that the H-4 holder must be physically in the U.S. in order to provide evidence of H-4 status, which is a requirement.   A person who is outside of the U.S. does not have H-4 “status”.

USCIS has also confirmed that travel outside of the U.S. and reentry on H-4 status are permitted while the I-765 H-4 Spouse EAD application remains pending.   USCIS cautions, however, that H-4 spouses who have filed for EAD must meet all H-4 admission requirements, including having an H-4 visa stamp in their passports.     Additionally, H-4 Spouse EAD applicants who travel during the time their I-765 is pending should understand that if USCIS sends a request for information (request for evidence, RFE, or notice of intent to deny, NOID) on the case, they will need to ensure that the response is submitted timely (often within 30 or 84 days).

USCIS previously indicated that no Application Support Center (ASC) biometrics will be required as part of the H-4 Spouse EAD process.   The FAQ released today seems to contradict this by mentioning that travel while outside of the US may create “delays if [USCIS will] need to reschedule your appointment at an [ASC].”     We still believe that USCIS will not require biometrics to be completed as part of the H-4 Spouse EAD process but we will seek a confirmation on this point and provide an answer as soon as we can.   Please sign up to our newsletter to get updates.

Finally, with respect to travel, USCIS has cautioned that concurrent H-4 status and H-4 EAD applicants should not travel while they wait for their H-4 status and H-4 EAD applications to be approved.   Traveling outside of the US while an application for status is pending is likely to cause this status application to be denied due to abandonment.      Denial of the H-4 status application will also cause denial of the concurrently-filed H-4 EAD application.

Revised Form I-765 and Instructions Still Pending

The revised Form I-765 and the accompanying filing instructions are still not released for public use.   We expect this to happen at any day now, and likely on May 26th.     The current version of the I-765 form should remain valid for H-4 Spouse EAD filings until a new version of the form is released (and then during the transition period which is to be announced as well).

Unrestricted H-4 EAD Employment

USICS has confirmed that the H-4 EAD, once approved, will allow unrestricted employment to the H-4 spouse.   This means that the H-4 spouse can take any job, regardless of the qualifications of the H-4 spouse and regardless of the requirements of the position.   The job can be temporary or permanent, part-time or full-time, or an independent contractor position.    Additionally, self-employment and starting, owning a business, including hiring other people are allowed.    Please see our dedicated article on the types of employment permitted on H-4 EAD.

However, H-4 EAD holders should understand that they are authorized to work only during the validity of their H-4 EAD card.    This makes it critical to keep track of the expiration dates and to file extensions well (4 months, or more) in advance to avoid gap in employment authorization.

H-4 EAD Is Not a Travel Document

USCIS, and our office, would also like to caution that the  H-4 EAD is not a travel document and H-4 EAD holders who travel outside of the U.S. would need to have a valid H-4 visa stamp in their passport and be otherwise eligible for H-4 admission into the U.S. in order to be able to travel and enter the U.S.

Conclusion

As we are getting closer to the May 26th H-4 Spouse EAD “opening day” we are hoping for smooth and clear H-4 EAD filing process, especially within the first days and weeks after May 26th.    USCIS has already announced that they are expecting a high number of H-4 EAD filings and they have suspended premium processing service for some H-1Bs to allow them to allocate more resources to the H-4 EAD process.

We will continue to provide information on this rule and answers to these questions as soon as we have anything to share.  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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USCIS Temporarily Suspends Premium Processing of H-1B Extension of Stay Petitions

USCIS has announced that effective May 26, 2015, they are temporarily suspending the premium processing for all H-1B extension of stay petitions for two months, or until July 27, 2015.     This surprising announcement comes in light of the anticipated heavy demand and number of filings for H-4 Spouse EAD when the filing window for this new work permit begins on May 26, 2015.

Premium Processing Not Available for New Filings of H-1B Extensions

During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.  USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.   Although USCIS has not specifically confirmed this in their announcement, USCIS is expected to continue to allow premium processing of H-1B petitions requesting initial terms of stay or consular processing.

Reasons for Temporarily Suspending H-1B Premium Processing

The rationale behind this two-month temporary suspension of the premium processing option for H-1B extension of stay petitions is the anticipated heavy demand and high number of H-4 Spouse EAD filings on and shortly after May 26th.    This is the earliest date when applications under the new H-4 Spouse EAD program can be filed and it is expected that there will be tens of thousands applications filed over the first weeks or months of eligibility.

Only H-1B Extension of Stay Applications Are Affected

We should highlight one more time that the temporary suspension of premium processing applies only to H-1B extension of stay petitions.    These types of petitions are expected to include H-1B extensions with the same employer or H-1B transfer petitions where an extension of stay is also being sought.

Petitions Not Affected.  H-1B petitions requesting change of status, H-1B amendments without extension of stay, petitions for L-1 (and other visa types eligible for premium processing) should remain unaffected with premium processing service available.

Premium Processing Fee Refunds Will be Offered to Affected Cases

For H-1B premium processing cases filed prior to May 26, 2015, USCIS will refund the premium processing fee if USCIS is unable to act on the case within 15 calendar days of filing.     We expect that USCIS will reject the premium processing component of H-1B affected H-1B petitions during this period (assuming the premium processing fee is in the form of a separate filing fee check).

What Else May Be Affected?

Given this unexpected announcement and in the fact of really high number of H-4 Spouse EAD filings on or after May 26th, it is likely that the USCIS processing timelines across the board may increase, at least at USCIS Service Centers which are dealing with H-4 Spouse EAD applications.   For example, we expect receipt notices to take longer to be issued and mailed out and we expect processing times to generally increase.      We urge proper planning and early filing to avoid problems caused by any processing delays.   Contact us if we can assist in any way.

Conclusion

This extraordinary (and unexpected, at least to us) announcement suggests that USCIS is bracing for a very high rate of H-4 Spouse EAD filings next week after May 26th.    This also suggests that there may be wider delays and possible disruption of processing times/services by USCIS which may go beyond H-1B extension filings.   We urge H-1B employers who have filed or are planning to file H-1B petitions, including extensions or change of status applications, to plan carefully and consider the possibility that H-1B petition adjudication times would increase.

Similarly, H-1B workers who are seeking an extension in order to prepare for an H-4 Spouse EAD filing or perhaps to travel abroad for stamping are now likely to see increased processing times and non-availability of the premium processing service.

Please do not hesitate to contact us if we can be of any help in preparing for this unanticipated H-1B premium processing disruption of service.    We are also assisting many H-4 Spouse EAD applicants and we are happy to offer information and a quote of our H-4 Spouse EAD filing services.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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June 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 Philippines Another Major Retrogression

The U.S. State Department has just released the June 2015 Visa Bulletin which is the ninth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued significant (5.5 months) forward movement in EB-2 India and the 12-month forward movement in EB-2 China.    EB-3 Philippines moves back again by two and a half years.

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

Below is a summary of the June 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 five and a half (5.5) months to October 1, 2008.  EB-2 China moves forward by twelve (12) months to June 1, 2013.
  • EB-3 ROW and Mexico advance by six (6) weeks to February 15, 2015.   EB-3 Philippines retrogresses (again!) by over two and a half (2.5) years back to January 1, 2005.   EB-3 China moves forward by four (4) months to September 1, 2011 while EB-3 India  advances by only one (1) week to January 22, 2004.
  • The “other worker” categories for ROW and Mexico advance by six (6) weeks to February 15, 2015 while Philippines retrogresses (again) by two and a half (2.5) years back to January 1, 2005.   Other workers China moves forward by six (6) weeks to January 1, 2006 while India  advances by only one (1) week to January 22, 2004.
  • EB-5 China now has a cutoff date of May 1, 2013.

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

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

  • FB-1 ROW, China and India move forward by only two (2) weeks to September 1, 2007.   FB-1 Mexico moves forward by one (1) week to November 15, 1994 while FB-1 Philippines retrogresses by about five years to March 1, 2000.
  • FB-2A moves forward again, this month the forward movement is by one (1) month to October 1, 2013 for ROW, China, India and Philippines.  It remains unchanged at August 8, 2013  for Mexico.

Another EB-2 India Significant (but Slowing) Forward Movement

This month’s Visa Bulletin brings another significant forward movement in EB-2 India of five and a half months which is a bit less than last two months’ forward movements of about eight months.    Overall, EB-2 India has by about three years over the last few months so this is certain a good sign.      EB-2 India applicants with a priority date earlier than October 1, 2008 can now move forward with their applications (or expect approvals if they have already filed their I-485 applications).    However, it should be noted that the rate of forward movement is slowing down, suggesting that the Department of State may be trying to account for increasing demand in new filings and approvals in EB-2 India.

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

EB-2 China Advances Significantly; EB-3 China Moderate Forward Movement

EB-2 China continues to advance this month.  This month’s forward movement of 12 months, combined with last month’s movement of fourteen months, are among the more significant movements in EB-2 China for some time.   EB-3 China also advances this month (after a significant retrogression two months ago) by four 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 is trying to moderate the demand by retrogressing (two months ago) and then advancing gradually (last two months) the cutoff dates.

EB-5 China Cutoff Date

Based on significant demand in the EB-5 category from Chinese nationals, the Department of State had introduced a cutoff date for EB-5 China in the last month’s Visa Bulletin.   EB-5 China remains unchanged this month at May 1, 2013.   Further retrogression is also possible (not immediately expected) based on the number of demand from Chinese nationals in this category (which demand has been very strong recently).

EB-3 Philippines (Another) Major Retrogression

Unfortunately for many EB-3 Philippines applicants, the EB-3 category moves back by another two and a half years this month, in addition to last month’s retrogression by over seven years.  This is a significant retrogression caused by high demand in this category and the Department of State has indicated that additional retrogression may be needed as well.

It is important to note that EB-3/OW Philippines applicants who have a cutoff date which is current now and who would no longer be current as of June 1st 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/OW Philippines candidates who have a priority date between July 1, 2007 and January 1, 2005 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 June 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 June 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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Immigration Relief Options for Nepal Nationals Impacted by the Recent Disaster

After the recent earthquake in Nepal, our office is receiving a number of inquiries by Nepali nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for Nepali nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Nepali nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Nepali students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Fee Waivers

USCIS would entertain requests to have certain immigration fees waived based on the applicant’s inability to pay or similar hardship.

Immediate Relatives Immigrant Petitions

USCIS may permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Nepali nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Nepali nationals who are impacted by the earthquake.   Our office stands ready to assist affected Nepali nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

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USCIS Completes Data Entry and Receipting of H-1B Cap Petitions

Many of our readers are aware that as of April 7, 2015, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.    As USCIS has been issuing receipt notices for the H-1B cap cases which are being selected for processing (we even are starting to see H-1B cap premium processing approvals), we wanted to provide an update as to how long will H-1B petitioners and applicants wait to hear whether their H-1B petition has been selected for processing under the H-1B cap.

H-1B Completes H-1B Petition Data Entry on May 4, 2015

USCIS has just announced that they have completed the data entry and receipting of all selected H-1B cap petitions.  This means that the last set of receipt notices are about to be sent out.   Here’s USCIS’s announcement:

USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, the time frame for returning these petitions is uncertain. USCIS asks petitioners to not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the petitions have been returned.

Based on this announcement, we expect that it may take another week or so to expect to receive H-1B cap receipt notices for selected cases.   Afterwards, USCIS will turn its attention to sending out the H-1B non-selection notices and document packages back.

Receipt of Rejection Packages Can Take Weeks

Please note that given the number of rejections USCIS will have to send out (~150 thousand), we expect that it may take at least several weeks before all H-1B lottery rejection packages are sent back and before knowing with certainty that a case did not make it under the H-1B cap lottery.

Was My Case Selected for Processing Under the H-1B Lottery This Year?

  • If your case was filed under premium processing and a receipt notice was not issued by now, chances are that the H-1B cap case was not selected under the lottery.
  • If your case was filed under regular processing, we should know that your case was selected under the H-1B cap lottery by mid-May.
  • If your case was filed under regular processing and we do not have news by mid-May, it is likely that your case was not selected under the H-1B cap lottery; however, the actual rejection notice may take several weeks.

Conclusion

Our office will continue to monitor developments relating to the H-1B cap  season.    For those who did not make it under the H-1B cap lottery, we have provided an article describing some common H-1B cap alternative options.     In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.

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