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USCIS Begins Accepting H-4 Work Permit Applications

The United States Citizenship and Immigration Services (USCIS) is now accepting work permit applications of certain H-4 spouses of H-1B non-immigrants who are in the process of obtaining green cards through employment.

The benefit is only available to the H-4 spouse of an H-1B visa holder who is either the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker or has been granted an H-1B extension under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended.

Under AC21, H-1B workers may file for an extension of their H-1B status beyond the 6 years allowable period on H-1B status, if they are 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 or the unavailability of a visa number.

The USCIS issued an FAQ on the new H-4 rule. It clarified, among others that H-4 dependent spouses who are eligible for the benefit may apply for work permits as long as they are on a valid H-4 status. The validity of their employment authorization document (EAD) will be for the same period as their H-1B family member. The applicants may apply for renewal of their EAD as long as they remain eligible under the rule.

If the H-1B visa holder’s I-140 petition is revoked or he is no longer eligible for H-1B extension under AC21, the USCIS has the discretion to revoke the work permit issued. Also, both the H-1B visa holder and the H-4 dependent spouse must maintain their nonimmigrant status in order for the H-4 spouse to qualify for the benefit.

The H-4 spouse granted work authorization under this rule may work for any employer. The work permit is unrestricted. The H-4 spouse may even start a business and hire individuals as employees of the business.
The application is made on Form I-765, Application for Employment Authorization. If the H-1B visa holder is filing Form I-129 petition to extend his/her stay on H-1B status along with the H-4 dependent’s spouse H-4 extension of stay application, the application for work permit may be filed together with these applications.

If a new H-1B petition is being filed along with a new H-4 change of status application, the application for work permit may also be filed concurrently. However, before the USCIS can adjudicate the I-765 application, it must first determine if both are eligible for H-1B and H-4 status respectively.

Current rules require the USCIS to adjudicate a pending I-765 application within 90 days from receipt. If the application is not adjudicated by the 90th day, regulations require the USCIS to issue an interim Employment Authorization Document. In this case, however, the USCIS will not begin counting the 90 days until they make a decision on the H-1B petition and the H-4 application.

The applicant must submit the following to show eligibility for the benefit: evidence of H-4 non-immigrant status, evidence of qualifying spousal relationship with the H-1B visa holder such as marriage certificate, and evidence of the H-1B family member’s non-immigrant status.

If the H-1B visa holder has an approved I-140 petition, the applicant must submit evidence that the I-140 petition has been approved such as the Form I-797 Approval Notice.

If not, the applicant must show evidence that the H-1B spouse is a beneficiary of a permanent labor certification application or employment-based immigrant visa petition which was filed on his/her behalf 365 days or more before the expiration of the six-year H-1B period, and the application or petition remains pending. The labor certification application or I-140 petition must have been filed by the end of the worker’s fifth year in H-1B status.

There is no premium processing service available for I-765 applications under this new rule.

Philippine EB-3 Visa Preference Rolls Back Another Two Years

The June 2015 Visa Bulletin shows that the cut-off date of the Philippine employment-based third preference (EB-3) for skilled workers, professionals and other workers will roll back another two years and six months from July 1, 2007 to January 1, 2005. The retrogression started this month of May when the Philippine EB-3 cut-off date rolled back seven years and three months to July 1, 2007.

The EB-3 cut-off date for all other countries except China and India will move forward by one month and fourteen days, to February 15, 2015.

The cut-off date for China’s employment-based third preference for skilled workers and professionals will move by four months to September 1, 2011 and other workers by one month and seventeen days to January 1, 2006. Meanwhile, EB-3 cut-off date for India will move by seven days to January 22, 2004.

The employment-based second preference (EB-2) will remain current for all countries except China and India. China’s second preference cut-off date will move by one year to June 1, 2013 while India’s cut-off date will advance by more than six months, to October 1, 2008.

Also, the employment-based fifth preference (EB-5) will remain current for all countries except China. The EB-5 cut-off date for China will remain at May 1, 2013. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 (unmarried sons and daughters of U.S. citizens) – September 1, 2007; F-2A(spouses and children of permanent residents) – October 1, 2013; F-2B (adult unmarried sons and daughters of permanent residents) – September 15, 2008; F-3 (married son and daughters of U.S citizens) – February 22, 2004 and F-4 (brothers and sisters of U.S. citizens) – September 8, 2002.

The cut-off date for the first preference (F-1) category for the Philippines will retrogress four years and 11 months. The Philippine cut-off dates are: F-1 – March 1, 2000; F-2A – October 1, 2013; F-2B – May 1, 2004; F-3 – August 15, 1993 and F-4 – November 8, 1991.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and are currently in the U.S., must file their adjustment application in order to get certain interim immigration benefits such as employment authorization and travel permit. Those with pending adjustment applications will be allowed to remain in the U.S. and work here until the adjudication of their adjustment applications.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, the alien must prove that he/she was in the U.S. on December 21, 2000.

Among the documents required to file for adjustment of status, in addition to Form I-485 and related forms, are the applicant’s photographs, medical examination report, affidavit of support, copy of passport and I-94, copy of birth certificate, and if applicable, copy of the applicant’s marriage certificate and official proof of termination of any prior marriage.

Clinton Takes A Bold Stand On Immigration

With the 2016 presidential election in sight, presidential hopeful Hillary Clinton, took a strong and clear stand on the issue of immigration. Clinton announced before a group of students in Las Vegas on May 5 that she will “fight for comprehensive immigration reform and a path to citizenship.”

Clinton’s move is intended to court support from Hispanic voters which is crucial in the next presidential elections. It can be recalled that minority voters helped President Obama win the 2012 race. 81 percent of the minority vote went to Obama with more than 70 percent of Hispanics choosing President Obama over Gov. Mitt Romney.

According to Clinton, Republican candidates who are proposing less than “full and equal” path to citizenship are speaking of “second class status.” She also said during the meeting that she supports President Obama’s executive actions. In fact, she said she would even expand it, if elected.

Under the President Obama’s original Deferred Action for Childhood Arrivals (DACA) program launched in 2012, certain young immigrants who were brought to the U.S. as children were granted relief from deportation.

The program was expanded in November 2014 when the President announced the expanded DACA program which eliminated the age cap of 31 years and moved the eligibility cut-off date for continuous residence in the U.S. from June 15, 2007 to January 1, 2010. The President also extended eligibility for deferred action to certain parents of U.S. citizens and lawful permanent residents or the Deferred Action for Parental Accountability (DAPA) program.

Implementation of the DAPA and expanded DACA program, however, is placed on hold because of a pending lawsuit.

Clinton declared that she would go further than President Obama’s executive actions and expand eligibility for deferred action to include parents of DACA beneficiaries.

Whit Ayres, Republican pollster and advisor to presidential hopeful Marco Rubio, criticizing Clinton’s position said, “Executive actions on immigration are exactly the wrong way to solve a broken immigration system. If anything we need more bipartisan approaches to addressing a broken system, not declarations of unilateral action.”

Some sees Clinton’s move as a trap for Republican presidential candidates by forcing them to take their position on immigration. CEO of the communications firm Purple Strategies Steve McMahon said that, “The Republicans will overreach because they always do and they’ll define themselves with most voters in a way that is negative.”

Many also sees Clinton’s tactic as strategic. The sentiment of the American public on immigration has shifted. Based on polling data from The Chicago Council on Global Affairs, in 1994, 7 out of 10 Americans sensed a “critical threat” by large numbers of immigrants in the U.S. The percentage dropped to 39 percent in 2014.

A number of polls have also revealed that majority of Americans are for the creation of a pathway to citizenship for the undocumented and agree that immigrants strengthen the country.

Clinton’s move can be read in many different ways. It is, however, clear that immigration is one of the key issues that candidates eyeing the presidency will have to address. Their stand on immigration will without doubt play a critical role in their journey to the White House.

Immigrant Community Awaits DAPA and Expanded DACA

While implementation of the President Obama’s Deferred Action for Parental Accountability (DAPA) program and the expanded Deferred Action for Childhood Arrivals (DACA) program is temporarily placed on hold, many are confident that the ongoing legal battle will be decided in favor of the administration and are continuing with their efforts to prepare for it.

The Office of New York City Mayor Bill de Blasio through its Office of Immigrant Affairs, for instance, continues to screen individuals who may be eligible for the program. The DAPA program extends eligibility for deferred action to certain parents of U.S. citizens and lawful permanent residents while the expanded DACA eliminated the age cap of 31 years under the original program and moved the eligibility cut-off date for continuous residence in the U.S. from June 15, 2007 to January 1, 2010.

According to Mayor de Blasio’s Office of Immigrant Affairs, around 54 percent of the 600 individuals who were screened may qualify for deferred action under the President’s program. Around 40 percent who underwent screening found that they might be eligible for visas or other types of benefits. The screening process is conducted through the CUNY Citizenship NOW! call-in.

Meanwhile, the government requested the U.S. Court of Appeals for the 5th Circuit to lift U.S. District Judge Andrew Hanen’s order which blocked the President’s DAPA and expanded DACA program. On April 7, 2015, Judge Hanen refused to lift the temporary injunction he issued on February 16, 2015 which effectively stopped the programs until the case is resolved. He has yet to rule on the merits of the case.

On April 17, 2015, the 5th Circuit heard the oral arguments from both sides which lasted two and a half hours.

Benjamin Mizer who represented the Justice Department argued that the decision was wrong as a matter of law. Mizer, during the oral arguments, explained that the program does not amount to blanket amnesty. Deferred action is a form of prosecutorial discretion which is well-within the executive authority of the President and according to Mizer, “discretion is being exercised on a case-by-case basis.”

Texas Solicitor General Scott Keller, whose state leads 25 other states in the lawsuit, on the other hand, argued that the president abused his authority when he announced the DAPA and expanded DACA program in November.

The three-judge panel of the Fifth Circuit has yet to issue a decision whether to grant the government’s motion for an “emergency stay” of the court order, pending appeal, or in the alternative, to stay its order beyond application in Texas.

The judges in the panel include Judge Jerry Smith, Judge Jennifer Elrod, and Judge Stephen Higginson. According to legal analysts, it is difficult to determine how each judge will rule.

Meantime, the April 7, 2015 decision of the 5th Circuit in Crane v. Johnson which dismissed the lawsuit challenging the original 2012 DACA program comes as great news to the immigrant community. Many are hopeful that the decision in Crane is foretelling of the outcome in the pending lawsuit challenging the President’s DAPA and expanded DACA program.

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