Work Authorization for H-1B Spouse
By Reuben S. Seguritan
April 16, 2014
The Obama administration has recently announced that it will propose rules that will allow certain H-1B spouses to work in the U.S. Under the current law, the dependent spouse of an H-1B nonimmigrant worker is not eligible to apply for work authorization.
The White House press release did not specify whether the proposed rule will be limited to a certain group of H-4 dependents or will allow all H-4 spouses to work. It simply indicated that the proposed regulation will allow “spouses of certain high-skilled workers on H-1B visas” to seek work authorization.
The draft rule could refer to dependent spouses of H-1B nonimmigrants who have been granted extension beyond the six-year limit under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).
A foreign worker is allowed a maximum period of 6 years on H-1B status. Under AC21, it may be extended when the H-1B worker is unable to adjust status before the end of the six-year period mainly because of delays in the adjudication of employment-based green card sponsorships and the unavailability of a visa number.
The U.S. Department of Homeland Security (DHS) made a similar proposal in its May 2012 Retrospective Review Plan Report. The May 2012 DHS report indicated that the proposal “would increase incentives of H-1B nonimmigrant workers who are allowed to extend their period of stay under AC21 as they complete the process to adjust status to that of a lawful permanent resident by providing parallel employment incentives to the H-4 spouse.”
The H-1B program is for foreign workers in specialty occupations. It has been frequently used by U.S. businesses to employ high-skilled foreign workers with degrees in science, technology, engineering and mathematics.
This year, the cap for H-1B applications was reached in the first five days of the filing season. The USCIS received a total of 172,500 H-1B petitions including those filed under the advanced degree exemption. A lottery was conducted to select the 20,000 petitions under the advanced degree exemption and the 65,000 cap-subject petitions.
The proposal to allow H-4 spouses to work is only one of the measures the White House is undertaking to make the United States “more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness.”
The draft rule is presently with the Office of Management and Budget (OMB). After initial clearance with OMB, it will be published as Notice of Proposed Rulemaking allowing the public to comment on it for at least 30 days. The proposed regulation in its exact form will not be released until published in the Federal Register.
Once the proposed regulation is in place, the qualifying H-4 visa holder will be issued an employment authorization document (EAD) which will allow them to work in the U.S. for the period indicated in the EAD. The validity of their EAD will be for the same period as their H-1B family member.
Filing Pointers for FY 2015 H-1B Cap Petitions
By Reuben S. Seguritan
March 26, 2014
The number of H-1B cap filings for fiscal year 2015 during the first five business days of the filing season (April 1-7) is expected to exceed the annual quota of 65,000 for foreign workers in specialty occupations and the 20,000 allotted for graduates with advanced degrees from the U.S.
If the USCIS receives H-1B petitions that exceed the numerical cap, the USCIS will conduct a lottery which would randomly select the number of petitions required to reach the cap. It must be noted that petitions postmarked on the fifth day may not be included in the lottery. Only those properly filed petitions with the correct fee that are received by the USCIS by April 7 will be considered. Thus, it is best to file the H-1B petition on April 1.
Petitions not selected during the lottery will be rejected along with those filed after April 7. The petition and fee shall be returned.
Multiple filings by an employer for one H-1B worker will result in the denial of all petitions. USCIS will not refund filing fees in this case. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B worker so long as it is for different positions and based on legitimate needs of the employers.
If the H-1B petition is accompanied by a request for premium processing, it will not increase the chances of obtaining an H-1B number. However, applications filed under premium processing will be issued receipts faster than those filed under regular processing. If the USCIS conducts a lottery, the petition filed under premium processing will know more quickly whether or not it was included in the lottery. Premium processing will not start until April 28.
Aside from early filing, the H-1B petition should be carefully reviewed to avoid rejection. Mistakes made on H-1B petitions may result in the rejection of the petition in the USCIS mailroom.
Also, in preparing the H-1B petition, employers are reminded to indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, they must indicate it in the petition. The Department of Homeland Security (DHS) has filed criminal cases against employers who indicated their headquarters as the work site in the petition even though the true intention was to put the H-1B worker in another worksite.
An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the work site at this time.
If the H-1B petition comes with a request for change of status, the petition must be accompanied by documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2014.
Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during this period.
Widespread Support for TPS for Filipinos
By Reuben S. Seguritan
February 19, 2014
More than 100 days have passed since Typhoon Haiyan ravaged many parts of the Philippines and the country is still suffering from the devastation. The scale of the destruction prompted members of both the United States Senate and the House of Representatives to submit requests to the Department of Homeland Security (DHS) to offer temporary protected status (TPS) to Filipino nationals in the U.S.
This was followed by a letter-petition joined by over 140 organizations appealing to the DHS to issue TPS for Filipinos. On December 16, 2013, the Philippine government formally requested the Obama administration for TPS designation.
The USCIS in its letter to the American Immigration Lawyers Association (AILA) last December stated that they would “continue to monitor the situation in the Philippines and are actively engaged with the Department of State and other agencies.”
Meanwhile, the U.S. Senate submitted its second letter early this February reiterating its request to designate the Philippines for TPS. Efforts have also been made by over 200 Filipino-American organizations across the US including the Catholic Church urging the U.S. government to grant TPS to Filipinos.
Temporary Protected Status is a humanitarian form of relief granted by the United States government to noncitizens who are in the U.S. and who are temporarily unable to return to their countries safely due to conditions in the country such as armed conflict, violence, and environmental disasters. TPS is a “blanket form of relief” which provides a safe haven for aliens who are not eligible for asylum or refugee status.
A TPS status grants eligible applicants temporary authorization to remain and work in the U.S. for a set period of time. It may be extended if the conditions in the country do not change. TPS does not lead to permanent residence.
The decision to grant TPS lies with the executive branch of the federal government. Under the Immigration and Nationality Act (INA), the Secretary of Homeland Security, in consultation with the Department of State, has the authority to designate a foreign country for TPS. Congress does not have to vote for the designation under this process.
Congress, however, may also issue TPS through legislation. When the TPS statute was enacted in 1990, it also granted TPS to nationals of El Salvador in the U.S. Last November, H.R. 3602, the Filipino Temporary Protected Status Act of 2013 was introduced in the 113thCongress. The bill was referred to the Subcommittee on Immigration and Border Security by the House Judiciary in January 2014.
The bill, sponsored by Congressman Al Green of Texas, would provide 18-month temporary protected status to Filipino nationals. Under the bill, an applicant must satisfy the following: (1) continuous physical presence in the U.S. since November 8, 2013; (2) admissibility as an immigrant and; (3) timely registration for TPS with DHS.
Countries currently designated for TPS are El Salvador, Haiti, Honduras, Nicaragua, Somalia, South Sudan, Sudan, Syria. There are over 300,000 TPS beneficiaries in the U.S. Data from the USCIS showed that El Salvador has the highest number of nationals currently benefitting from temporary protected status (212,000), followed by Honduras (64,000) and Haiti (60,000). Sudan has the least number with only 300 nationals registered for TPS.
Honduras and Nicaragua were placed under TPS in 1999 after the devastation of Hurricane Mitch. El Salvador was granted TPS designation after earthquakes in 2001 and the most recent, Haiti, after the earthquake in 2010. These countries were granted temporary protected status after a natural disaster.
Similarly, the destruction in the Philippines brought on by Typhoon Haiyan, which has killed more than 6,000, displaced 4 million and affected in total 16 million people, calls for TPS designation. It will assist thousands of Filipinos while rehabilitation is underway and will without doubt serve its humanitarian purpose.
Prepare H-1B Petitions Now
By Reuben S. Seguritan
February 12, 2014
The demand for cap-subject H-1B numbers for fiscal year 2015 which begins on October 1, 2014 is expected to be greater than last year. Employers planning to file cap-subject H-1B petitions for foreign workers in specialty occupations are advised to initiate the H-1B petition process as early as possible.
Last year, 124,000 cap-subject H-1B petitions were filed during the first week of filing. Each fiscal year, an H-1B quota of 65,000 is allotted to foreign workers in specialty occupations with an additional 20,000 for graduates with advanced degrees from the U.S. This year, the annual cap is expected to be reached during the first five business days of filing. The first day of cap-subject H-1B filing is on April 1, 2014, a Tuesday.
Employers whose H-1B petitions were among the 39,000 petitions not assigned a number in last year’s lottery will most likely file another H-1B petition for their prospective employees.This will further augment the growing demand for H-1B numbers for fiscal year 2015 which is mainly because of the improving economy and the rising need for H-1B workers in the Information Technology (IT) and financial fields.
The race for an H-1B number this year will require early preparation. Before the actual filing with the USCIS, the H-1B employer must obtain a certified labor condition application (LCA) from the Department of Labor (DOL). The employer makes several attestations in the LCA including a promise to pay the required wage to the worker for the entire period of the authorized employment.
The employers also attest in the LCA that the current employees and the union, if any, are given notice of the petition and that there are no strike or lockout in the occupational classification at the place of employment.
Processing time of LCAs may vary. Employers who are filing H-1B petitions for the first time may be required to submit documents to verify tax identification numbers. The expected high volume of LCA filings may also delay the processing of LCAs.
The H-1B petition must also have documentary evidence of the beneficiary’s educational background and work experience to make him eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluations and license to practice the profession, if required, among others.
If the beneficiary’s diploma has not been issued yet, the USCIS allows the submission of other evidence. The final transcript as well as the letter from the Registrar confirming that all degree requirements have been met may suffice. It must be noted that all documents submitted should come from a verifiable authorized official of the school. Gathering these documents from beneficiaries will definitely entail time.
Given the limited number of H-1B visa numbers available each year, the race for an H-1B number will require early preparation and no room for error. Employers who are planning to file cap-subject H-1B sponsorship for prospective employees should therefore start the process now.
Employment Authorization for Abuse Victims
January 08, 2014
According to the draft policy memorandum released by the USCIS approved VAWA self-petitioners are eligible for employment authorization based on the approval of the petition alone.
Under the policy memo, to get an employment authorization document (EAD) a petitioner with an approved I-360 and who is residing in the United States must file Form I-765 along with the filing fee and required photos with the Vermont Service Center.
Previously, they could obtain employment authorization only after being granted deferred action. Deferred action status means that an alien is a low priority for immigration enforcement or deportation and provides legal basis for employment authorization. When granted, the status is valid for 15 months, renewable in 12-month increments.
VAWA self-petitioners who are spouses, children or parents of the U.S. citizen abuser are also eligible for employment authorization without need of deferred action and even before approval of the I-360 self-petition, because they can file the I-485 adjustment application concurrently with the I-360 as immediate relatives.
The policy memo however does not change the policy when it comes to the principal beneficiary’s derivative children, who must still rely on a grant of deferred action in order to be eligible for an EAD.
Under the new policy memo, battered spouses of A (ambassador), E(iii) (Australian specialty occupation worker), G (foreign government or international organization representative) and H (alien specialty occupation workers) nonimmigrants are also eligible for employment authorization.
To be eligible for an EAD, the applicant must be the spouse who accompanied or followed to join a principal alien in the nonimmigrant category and he must be maintaining status as a nonimmigrant. The applicant or the applicant’s child must have been battered or has been the subject of extreme cruelty perpetrated by the principal alien spouse.
The battered spouse of the nonimmigrant must file Form I-765 along with the new supplemental Form I-765V with the Vermont Service Center, along with evidence of the qualifying nonimmigrant status of both the applicant and the abusive spouse; evidence of spousal relationship; and evidence of abuse such as police reports, court records, medical records, reports from social service agencies, and a protective order, if any.
If the applicant is unable to provide documentary evidence of the nonimmigrant spouse’s status, he must provide some identifying evidence such as name, place of birth, country of birth, date of birth, date of entry into the U.S., I-94 number, name of employer, etc.
If the application is approved, the EAD will be valid for a period of time equal to the remainder of the applicant’s current period of authorized stay or duration of status, if applicable.