Seguritan US Immigration Articles

DREAMERS’ Dilemma: To File or Not to File for DACA

Young immigrants known as Dreamers are in a dilemma after the election of Donald Trump as president. Should they file for DACA? Should those with DACA status file for renewal or travel under advance parole?

DACA (Deferred Action for Childhood Arrivals) is an executive action which was announced by outgoing US President Barack Obama back in June 2012 following the failure of the DREAM Act’s passage into law. It is lacking the force of law, and operating under the enforcement discretion of the Department of Homeland Security (DHS), USCIS and the Immigration and Customs Enforcement (ICE). It does not guarantee a path to citizenship but rather defers deportation to those who came to the US before turning 16 years old and have continuously resided in the country, gone to school and have no criminal records.

While it has helped a lot of young immigrants obtain work permits and travel authorization and be protected from deportation during Obama’s presidency, the reality is that executive actions can easily be undone by the next president. With Trump’s platform on undocumented immigrants, it is highly likely that he will end this executive action.

If and when Trump decides to totally scrap DACA, there is still uncertainty as to how USCIS will handle the situation. It is possible that if USCIS will terminate DACA completely, those holding valid work permits will no longer be able to renew. It is possible that the employment authorization and advance parole may remain valid until its expiration.

As of now, it is unclear if Trump will scrap the DACA immediately upon his assumption into office. Given that it usually takes about nine months for an initial DACA application to be adjudicated, it is safe to assume that any new application will not be adjudicated prior to his assumption in office on January 20, 2017. On the other hand, renewals of DACA application are processed quicker.

Thus, to avoid paying the DACA fees with no guarantee that it will not be rescinded, it may be best to defer any new initial DACA application until Trump has completely laid down his stand on the matter. On the other hand, those who plan to renew may opt to submit their DACA renewal as soon as practicable.

For DACA recipients who also intend to travel abroad but have not yet applied for their advance parole, any new Form I-131 application may not be adjudicated prior to January 20 given the current processing times. DACA recipients with advance parole should complete their travel and return to the US as soon as practicable and before January 20 to avoid any problems coming back. One should also bear in mind that the grant of an advance parole does not guarantee admission to the US. DHS may revoke or terminate any advance parole at any time.

Those intending to apply for the first time also have to take into consideration the risk they may be putting themselves into. Because DACA was created through an executive action, there is no statutory provision guaranteeing confidentiality. In fact, it somehow encourages people to come out from the shadows and divulge pertinent information like workplace or school location, in exchange for the promise of deferred deportation and protection. While the information disclosed in a DACA request is protected from disclosure to ICE and Customs and Border Patrol (CBP) for immigration enforcement purposes, there is no guarantee that this will remain the same in the coming months.

What is clear is that those who already applied for DACA already have their information in government hands. Thus, it does not appear that if one were to renew his DACA, that he will put himself in any additional risk. On the other hand, the submission of an initial application at this time would require disclosure of pertinent information that could potentially be used in case of sweeps or workplace raids that may be conducted later on.

Immigration Fees to Increase Effective Dec. 23

Effective December 23, fees for most immigration applications and petitions will increase by an average of 21 percent.

The increase will be the first in six years. A comprehensive review had determined that the USCIS was not recovering the full costs of processing immigrant benefits. Lack of congressional appropriations especially for the asylum, refugee, military naturalization services, and the SAVE program that were ordinarily reliant upon Congress’ budgetary allocation likewise affected this move.

To recover the full cost of services including costs of fraud detection and national security, customer services, case processing and providing benefits without charge to refugee and asylum applicants, the fee increases had to be imposed, said USCIS director Leon Rodriquez.

For those applying for naturalization, there will be an increase in the standard fee for Form N-400 from $595 to $640. Fee waivers will still be available to those who meet the requirements under the law. A reduced fee of $320 will be offered to naturalization applicants with family income greater than 150% and not more than 200% of the Federal Poverty Guidelines.

For those who are claiming US citizenship due to birth abroad to US citizen parent(s) and need proof of US citizenship through Form N-600 and N-600K, there will be an increase from $600 and $550, respectively, to $1,170. This is essentially a 95% increase compared to the old schedule and one of the more substantial raises.

Fees for family-based petitions will go up as well. I-129F Application for Alien Fiancé(e) will increase from $340 to $535; I-130 Petitions for Alien Relative from $420 to $535. Under the current fee schedule, the total filing fee for a one-step, concurrent filing of Form I-130, Form I-485, Form I-765 and Form I-131 is $1,490; this will be bumped up to  $1,760. I-485 Application to Register Permanent Residence will also increase from $985 to $1,140. I-751 Petition to Remove Conditions on Residence will increase from $505 to $595.

Employment-based petitions will not be exempted either. I-129 Petition for Nonimmigrant Worker will increase from $325 to $460 which is a 42% increase and one of the highest increases for this service since 2007. I-140 Immigrant Petition for Alien Worker will increase from $580 to $700.

I-601 Application for Waiver of Grounds of Excludability and I-601A Application for Provisional Unlawful Presence Waiver will both increase from $585 to $930 and $630, respectively. Fees for employment authorization permits (I-765) will increase from $380 to $410. This increase will affect foreign students approved for Optional Practical Training (OPT), spouses of certain nonimmigrant visa holders as well as recipients of DACA and TPS applicants.

Biometric or fingerprinting fee will remain at $85.

Applications and petitions postmarked on or after December 23, 2016 must pay the new fees or they will not be accepted.

Filing for Adjustment Even if Visa Not Immediately Available

This October which is the start of fiscal year 2017, adjustment of status applications may be filed even if a visa number is not immediately available for the priority date of the applicant. The date of filing the application rather than the date when a visa number is available determines when to file.

This is good news to those who have been waiting for a long time for their priority dates to become current. A pending adjustment application entitles the applicant to work authorization and travel permit.

Every year, there is a limit to the number of immigrant visas issued to various visa categories except those that do not need to be on the wait list like immediate relatives of US citizens since an immigrant visa is always available to them.

Family-based immigrant visas are capped at 226,000 and employment-based immigrant visas are capped at 140,000 annually. The United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS) have established a guide to let applicants know when visa numbers will be available for their particular category.

As a guide, the DOS releases a visa bulletin every month. This lists the availability of immigrant visa numbers and likewise shows the backlogs in each category for a given month. The visa bulletin also shows when an application for adjustment of status (green card application) can be filed.

Up until last year, an application for adjustment of status could only be filed if the visa petitioner’s priority date was earlier than the cut-off date in a particular category. A priority date is generally the date when a relative or employer filed an immigrant visa petition on behalf of the beneficiary.

Starting in October 2015, the visa bulletin has adopted two charts per visa preference category— the Final Action Dates and the Dates for Filing Applications. Essentially, the Final Action Dates indicate when a visa is immediately available and the Dates for Filing Applications are the earliest dates when applicants may be able to apply. For purposes of adjustment of status application, the USCIS said that it will announce every month which of these two charts will be used to determine when application to adjust status may be submitted.

Ever since the start of this new revision, USCIS has used the Final Action Dates to indicate when foreign nationals can submit their application to adjust status (green card application). The Dates for Filing Applications have been used only to notify applicants as to when they can start assembling their documents for submission to the National Visa Center (NVC).

However, for the first month of the new fiscal year the USCIS has announced that adjustment applicants must use the Dates for Filing Applications. This means that they can file for adjustment without waiting for the availability of visa numbers.

If their priority date is earlier than the cut-off date in the chart for Dates of Filing Applications they may file for adjustment of status. For employment-based visa categories, EB-1 is now current worldwide. EB-2 is also current worldwide except for China and India. EB-3 is also current worldwide although the Philippines remains oversubscribed. For the Philippines, EB-3 shows a cut-off date of Sept. 1, 2013 which is about 34 months ahead of the Final Action Date.

For the family-based visa preference, the cut-off date for F1 for the Philippines is May 1, 2006; F2A is November 22, 2015 and F2B is February 1, 2007. The cut-off date for the F3 is January 1, 1995 and for the F4, it is April 1, 1994.

 

Petitioning Physical Therapists for Green Card

Physical therapists continue to be very much in demand in the United States. According to the Bureau of Labor Statistics, the demand is projected to grow by 34% from 2014 to 2024. This demand stems from aging baby boomers who are now in their 60s and 70s.

According to a research published in the American Academy of Physical Medicine and Rehabilitation, “the demand for PTs will outspace the supply within. Shortages are expected to increase for all 50 states through 2030. States in the Northeast are projected to have the smallest shortages, whereas states in the south and west are projected to have the largest shortages.”

This seems like good news to foreign physical therapists who may also be looking at working here in the US either for the experience or due to lack of better opportunities in their home countries. Like nurses, PTs can live and work in the US permanently.

Physical therapists may enter the US under an immigrant visa or green card. They belong to the Schedule A occupations which means they do not have to go through the lengthy process of obtaining a labor certification before an employer can file their I-140 immigrant visa petition.

The green card process starts with the filing of an I-140 petition on behalf of the foreign physical therapist with the USCIS Service Center having jurisdiction over the intended place of employment. The petition must be supported by the following documents: application for Permanent Employment Certification (Form 9089) in duplicate; prevailing wage determination; a copy of the notice sent to applicable collective bargaining unit or a copy of the posted notice of filing (notice must be posted at the place of employment between 30 and 180 days prior to the filing of the Form I-140 petition); and a copy of all in-house media used for recruitment of similar position.

Also required are permanent license in the state of intended employment or statement signed by an authorized state of intended employment stating that the beneficiary is qualified to take the state’s licensing exam; physical therapy diploma or degree; and proof of prospective employer’s ability to pay wage (for an employer with 100 or more employees, a letter from a financial officer; if employees total less than 100, a copy of annual reports, federal tax returns or financial statements).

Foreign educated physical therapists must demonstrate that their education is “substantially equivalent” to a U.S. education. Previously, a foreign PT may only need to have a bachelor’s degree in physical therapy but since 2001, the Commission on Accreditation in Physical Therapy Education (CAPTE) discontinued accrediting bachelors’ degree programs in the US and required all US programs to offer courses that would result in a master’s degree in Physical Therapy. Then recently, in 2015, it pushed the standard again. Now, all accredited physical therapy education programs in the US only offer the Doctor of Physical Therapy Degree (DPT). Before one is admitted to the DPT program, one needs to have completed a four-year bachelor’s course.

Physical therapists must also obtain a visa screen certificate either from the Foreign Credentialing Commission on Physical Therapy (FCCPT) or the Commission on Graduates of Foreign Nursing Schools (CGFNS). The certificate ensures that their credentials and English proficiency qualify them in performing their professional work in the US.

It is important to note that the FCCPT’s issuance of a visa screen certificate is a confirmation that the physical therapist’s education is equivalent to at least a master’s degree in Physical Therapy. This qualifies the applicant for the employment-based second preference (EB-2) classification

Expanded Provisional Waiver to Benefit Thousands

The United States Citizenship and Immigration Services (USCIS) announced last July 29 the expansion of the existing provisional waiver program to include all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. The new rule, which will take effect on August 29 will benefit thousands who are not eligible to file for adjustment of status.

Before the first provisional waiver program took effect on March 4, 2013, applicants who had incurred unlawful presence in the US for more than 180 days, and were not eligible to adjust their status, had to go back to their home country to process their visa application there. They included fiances who entered on a K-1 visa but did not marry their petitioner and also crewmen and EWIs (those who entered without inspection) who were not grandfathered under Section 245(i).

Their departure from the US triggered the three or ten year bar. They were allowed to apply for a waiver of their unlawful presence but this took months, if not over a year. They had to appear first at the visa interview, wait for the denial of their visa application and then file for the unlawful presence waiver from outside the US and wait for its approval there. This discouraged many because of the risks, costs and hardship involved so instead of applying for a green card, they opted to remain undocumented.

To alleviate the hardship brought about by the lengthy family separation, the provisional waiver was introduced. It allowed them to apply for the waiver before their departure to process their immigrant visa application abroad.  However, the 2013 rules only applied to immediate relatives (spouses and children of US citizens and parents of adult US citizens) who can show that their separation would cause “extreme hardship” to their US citizen spouse or parent.

The new rule would cover visa applicants who can show extreme hardship to a US citizen or lawful permanent resident spouse or parent whether their visa petition is family-based or employment-based.

The provisional waiver covers unlawful presence and no other ground of inadmissibility. The application would be made on a new form, Form I-601A Application for Provisional Unlawful Presence Waiver.

Individuals who are not eligible for the provisional waiver would still be able to apply under the old waiver procedure, i.e. depart from the US and apply for the I-601 waiver abroad.

Note that the waiver is provisional in that it would not take effect until after the applicant departs the US, appears at his visa interview and is found by the consular officer as otherwise admissible to the US. But the time that the individual would have to spend abroad would be significantly less compared to that under the old procedure.

We have recently represented a fiancée and also a crewmember and we successfully obtained their provisional waiver in only a few months. They went to Manila for their visa interview and came back with their green card after only a few weeks of stay there.

Judo Athlete Qualified for EB-1 Extraordinary Ability

The employment-based first preference visa (EB-1) is granted to persons of extraordinary ability. They don’t need a job offer and they may self-petition. It is one of the fastest ways to get a green card.

It is usually reserved for outstanding scientists, artists and professors. But recently, a judo athlete was able to successfully qualify under the category. In a decision reached by the Administrative Appeals Office, the self-petitioner, a judo expert from Korea was granted EB-1 status so he can teach future judo athletes here in the US.

A foreign national applying for EB-1 visa must demonstrate sustained national or international acclaim and give extensive documentation of his achievements.  This claim is best evidenced through a one-time achievement of a major, internationally recognized award, such as the Nobel Prize, an Oscar Award or an Olympic medal. However, it can also be proven by submitting evidence falling under at least three out of the ten regulatory criteria.

These ten criteria are the following: (1) receipt of lesser nationally or internationally recognized prizes or awards for excellence; (2) membership in associations in the field that demand outstanding achievement of their members; (3) published material about the alien in profession or major trade publications or other media; (4) evidence that the alien has been asked to judge the work of others, either individually or in a panel; (5) evidence of original contributions of major significance to the field; (6) authorship of scholarly articles; (7) display of the alien’s work at artistic exhibitions or showcases; (8) evidence of performance in a leading or critical role for organizations that have a distinguished reputation; (9) evidence of high remuneration in relation to others in the field; and (10) evidence of commercial success in the performing arts.

He was able to demonstrate that he satisfied three of the ten regulatory criteria discussed above. He showed records that he won first place in national and international competitions. He also showed that his professional or athletic accomplishments were made the subject of an article published in Seoul Yonhap News, Korea’s largest news organization. The piece featured his performance in various rounds of tournaments. He also presented that he has a position in the national judo team which is effectively the most difficult association membership for a judo athlete to obtain, especially in Korea. Even his membership in the national team suffices to show one of the ten criteria because only those with the highest level of performance make the cut.

Because he was able to satisfy three of the ten criteria, the next is for the adjudicator to look at the evidence in totality and find out whether the foreign national meets the required level of expertise for the category. His level of expertise must be that of a small percentage of individuals who have risen to the very top of their field of endeavor, and that he has sustained national or international acclaim and his achievements have been recognized in his field of expertise.

Here, the petitioner was able to satisfy the board that he has a long, successful and recent career as a judo athlete. From 2000 to 2012, he was a member of the Korean national team that sweeps awards in the sport in the Olympics, World Championships, Masters, Grand Slam and other prestigious international competition.

According to the EB-1 visa program, the foreign national must seek to continue working in the same field of endeavor and that his entry will substantially benefit prospectively the U.S.

The petitioner seeks to establish a judo academy and train promising athletes and eventually coach the American judo team in the Olympics. Given all that he has demonstrated, the USCIS was convinced that petitioner may transition from athlete to coach and remain in his field of expertise.

Nurse Awarded Back Wages for Time He Didn’t Work

A Filipino nurse was recently awarded back wages for the period that he was not performing work due to lack of assigned work.

Vicente de Dios was petitioned by Medical Dynamic Systems, Inc., a health staffing company, to work as a fulltime nurse manager at a salary of $37.06 per hour. He contended that his H-1B status began on January 28, 2010 but he only worked for 24 hours in March 2010. On May 21, 2010, he was asked by the Marketing Director of Medical Dynamic to look for another sponsor since the company was unable to provide him a job placement. He was offered a plane ticket to go back home. However, after that, it kept communicating with him asking him to attend a few job interviews.

De Dios claimed that Medical Dynamic put him in a non-productive status and failed to perform its obligation under the H-1B petition. He was willing and able to perform his job as a nurse manager but Medical Dynamic attempted to employ him in positions other than what was in the petition. He also claimed that he paid the H-1B filing fees and attorney’s fees to process his application, in violation of H-1B regulations.

According to the decision of the Administrative Law Judge (ALJ), the employer must pay the required wage even if the H-1B worker was in non-productive status. If the non-immigrant worker was unable to perform work due to a decision by the employer like lack of assigned work, the worker was deemed to be “benched”. “Benching” is the nonproductive time that can occur when a company brings H-1B workers to the US and contract them out to other entities instead of use them in their own business. By law, the employer is still required to pay the said worker his required wage rate.

The only time that employers need not pay is if the nonproductive status happened because of circumstances that are attributed to the worker himself and unrelated to his employment like touring the US, caring for ill relative, maternity leave, among others.

The ALJ highlighted that an employer’s obligation to pay the H-1B worker’s back wages extends from the date the worker makes himself/herself available for work or comes under the control of the employer until the time that a bona fide termination of employment relationship was undertaken.

The ALJ ordered Medical Dynamic to pay De Dios for the period starting February 15, 2010, the date when De Dios made himself “available for work” or came “under the control of the employer” up through October 27, 2010, the date when the company made a bona fide termination of employment. It was liable to pay $55,587.20 in back wages for 37 weeks and two days at a rate of $37.06/hour, at 40 hours per week. It was also made liable to pay compound interest for the back wage assessment.

Furthermore, it was also held that the company violated the H-1B regulations when it made the worker pay for his H-1B filing fees and attorney’s fees, therefore reducing his pay. When a worker is asked to pay for the expenses in the filing of his H-1B petition, the ALJ said that it is in effect a wage deduction which would reduce his salary below that required in the petition. In the said case, De Dios paid $3,600 for his H-1B processing, which, according to the decision, was clearly in violation of the regulation. Medical Dynamic was then asked to remit the said amount to De Dios.

Changing Jobs While Adjustment Application is Pending

The US Citizenship and Immigration Services (USCIS) has recently provided guidance on when an applicant for adjustment of status is allowed to port or change to a new employment. The new employment must be in the same or similar occupational classification as the original job.

The job flexibility provision was in the American Competitiveness in the 21st Century Act of 2000 (AC21) but it was not clear under the law or regulations what “same” or “similar” meant. The new guideline memo clarifies the procedure in determining eligibility for the job change.

To establish that both jobs are in a similar occupational classification, the applicant may submit proof about the Department of Labor (DOL) occupational classification codes assigned to the jobs; the duties for each job, the skills, experience, education, training, license or certification required for each job; the wages offered and any other relevant evidence. The change to another occupational classification may involve lateral movement, career progression or self-employment.

In determining whether the new job is the same or similar occupational classification as the employment in the initial I-140 petition, the USCIS will look as to whether the jobs are “identical”, resembling in every relevant respect or in the same kind of category or thing.

To be eligible to change or port from one job to another, the beneficiary’s adjustment of status application must have been pending for 180 days or more.

Also, the Form I-140, Immigrant Petition for Alien Worker, must have been approved or is approvable when concurrently filed with the adjustment application. There must be a valid job offer and the beneficiary must be eligible for employment preference classification.

If both the I-140 petition and the I-485 application remain pending for more than 180 days, the beneficiary is not automatically entitled to port. The USCIS must first determine whether the initial I-140 petition is approvable. If USCIS finds that it is, then it will adjudicate the adjustment of status application to determine whether the new position is in the same or similar occupational classification. The I-140 petition must be approved before portability is granted.

If the I-140 petition is subsequently denied, the beneficiary cannot invoke the portability rule.

The USCIS adopted the decision of the Administrative Appeals Office (AAO) in the Matter of Al Wazzan relating to the portability rule as it applies to denied I-140 petitions.

In that case, the applicant insisted that he was entitled to port under AC21 based on his new job offer because his I-485 application had been pending for more than 180 days at the time USCIS denied his application. The I-140 petition filed on his behalf was denied by the USCIS on the ground that the applicant was not entitled to the employment classification sought.

The AAO held that portability rule cannot apply where the I-140 petition is not valid. A denied I-140 petition cannot be considered valid regardless of whether the petition was adjudicated 180 days or more after the filing of the adjustment of status.

An I-140 petition is considered valid if filed on behalf of an alien entitled to the employment classification sought. Put simply, the portability rule cannot apply where there was never a valid petition from which to port.

Immigration Options for Crewmen

Sometimes ship crewmembers ‘jump ship’ while their vessel is in the US in the hope that they can obtain their green card and build a better life.

Unfortunately, they would soon realize that as a rule, they are not eligible to adjust status even if they are married to a US citizen.

What then are their options?

If the crewman is the beneficiary of a petition or labor certification filed on or before April 30, 2001 and was in the US on December 21, 2000 if the petition was filed after January 14, 1998, he is covered by the 245(i) exception to the adjustment bar. However, if he does not fall under this exception, he has to go abroad and obtain an immigrant visa.

This would mean years of separation from his family if he has accrued unlawful presence in the US for more than 180 days. But a recent regulation now allows certain individuals, including crewmembers, to shorten the separation by obtaining a provisional waiver before he departs for his immigration interview abroad.

We have recently represented a crewmember who successfully obtained a provisional waiver. Our client was in the Philippines only for a few weeks and is now a lawful permanent resident in the US.

Another option is for the crewmember to check with an attorney if he is a crewman to begin with.

Under the Immigration and Nationality Act, an alien crewman is a person serving in a capacity required for the normal operation and service on board a vessel or aircraft, who intends to land temporarily and solely in the pursuit of his calling as a crewman.

The proper visa classification for crewmen is the D visa. However, the C-1 visa is also given to crewmen who will be in immediate and continuous transit through the U.S. to join a ship or aircraft in the U.S. Consular officials often issue a dual transit/crewmember visa called “C-1/D”.

Confusion sometimes arises because, since the C-1 visa is generally for those who are passing through the U.S. to another country, not all transit visa holders are crewmembers but they are issued a C-1/D visa.

The confusion continues upon inspection for admission or parole in the U.S., where the individual may be issued an I-94 with a C-1 or D stamp, or an I-95 (crewman’s landing permit).

In other words, not everyone with a C-1 or a C-1/D visa is a crewman and ineligible to adjust status. If the person does not meet the statutory definition of a crewman, he/she should not be considered ineligible for adjustment of status. Under the law, it is one’s occupation and purpose of entry that makes him a crewman and not the manner of his arrival.

Given the serious immigration implications of being categorized as a crewman, it is important to look beyond what may be stamped on the face of one’s immigration papers and analyze many factors, including his occupational history, purpose in coming to the United States, circumstances surrounding his inspection upon admission to the U.S., and actions after his entry.

H-4 Employment Authorization Guideline

A question and answer guideline concerning the employment authorization for certain H-4 dependent spouses was recently released by the USCIS. It provides information on eligibility, the application process, adjudication and processing times.

The H-4 employment authorization rule took effect on May 20, 2015. Many have already applied for the benefit but further clarification of the process was needed.

Under the rule, eligible are the spouses of H-1B nonimmigrants who are the beneficiaries of an approved I-140 immigrant petition or who have been granted extension beyond six years under the AC21 law.

The I-140 need not have been filed by the current H-1B employer or by the employer who had filed the H-1B petition.

The I-140 must not have been revoked. Both the spouse and the dependent must be maintaining their nonimmigrant status.

The authorization is unrestricted. This means that you as a dependent spouse may work anywhere or engage in self-employment or start a business.

If you file you must submit a paper I-765 application, not an electronic form, and submit supporting documents. Supporting documents include evidence of H-4 nonimmigrant status, evidence of your relationship with your H-1B spouse such as your marriage certificate and documents proving his/her H-1B status. This could be a copy of Form I-797, Notice of Approval for the Form I-129 filed on your spouse’s behalf. This could also be a copy of your H-1B spouse’s Form I-94, personal data page in his/her passport, visas on which he or she last entered the US and the latest US admission stamped in his/her passport.

If your spouse’s H-1B status is based on the AC21 law, you must include evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his/her six-year stay. This could be a copy of a printout from the Department of Labor (DOL) showing the status of the Permanent Labor Certification Application filed on his/her behalf.

You may also submit proof that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his/her six-year stay as an H-1B. An example would be to include a copy of your H-1B spouse’s Form-I-797 Receipt Notice for the Form I-140.

If you are applying based on your spouse being a beneficiary of an approved Form I-140, submit a copy of the approval notice of his Form I-140 or if unavailable, anything that could explain why it is unavailable.

If you are unable to obtain the abovementioned documentation for whatever reason, sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances may likewise be submitted as substitute evidence.

While the I-765 is pending, you may travel if you are currently in status and meet all other admission requirements. If the I-765 is filed concurrently with your I-539 change of status to H-4, travel will be treated as abandonment of application.

Processing time is about 90 days. The employment authorization card cannot be used to enter and exit the US.

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