EB-2/EB-3: “How Long Must I Work for this Company?”

I recently saw this issue raised on an attorney email list.  The question is asked frequently and anyone who gets permanent residence based on an employer petition should understand this concept. 

There is no exact number of days/months/years that an Employment-based immigrant must work for the petitioning employer.  The answer is a combination of your initial intent and any circumstances that have changed since becoming a permanent resident.

On the day you become a Permanent Resident, you and your employer are agreeing to establish a "permanent" employment relationship.

It must be your intent on that day to remain with the petitioning company for the foreseeable future. 

 

You must not already be planning to quit in the near future.  If you do not have this “permanent” intent to continue working on the day you are granted residence,  USCIS may say you were not living up to your agreement that allowed you to become a permanent resident.  Past employment with this same company does not count.  You may have worked for them for many years as an H-1B or L-1, but it is your intent when granted residence that matters. 

Of course, you should also always keep in mind that your employer has expended considerable time and effort towards your desire to become a Permanent Resident, and they are relying on your promise to work for them in the future.  If USCIS later finds that this was not your intent, your Permanent Resident status can be removed. 

However, “permanent” does not mean forever.  Should an event occur after you become a Permanent Resident that would commonly cause a worker to change employers, such as a substantially better job offer, spouse relocation or unbearable working conditions, you can leave your position.  But if you do leave your job within the first two years, I strongly recommend you document the reasons that led to your departure and collect any evidence that may be available showing that the event causing you to terminate employment occurred after you received Permanent Residence.  This evidence will be very useful should you later need to defend against an immigration fraud allegation many year after you left employment.

These cases usually after an employer complains to USCIS about an employee quitting, or when a USCIS officer questions the short employment history with the petitioning employer when applying for U.S. Citizenship.

Although somewhat uncommon, USCIS will take action if they believe they can prove fraud was committed.  If discovered within five years of the grant of Permanent Residence, USCIS may directly remove residence through Rescission proceedings.  If more than five years has elapsed, the government is required to place the worker in Removal (deportation) proceedings.

It is much better to understand this requirement at the beginning of your Permanent Residence than to be one of the unlucky ones who learn these rules in removal proceedings!

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U.S. Embassy Visit – Manila, Philippines

On March 13, I had the privilege of touring portions of the U.S. Embassy in Manila.  It is unfortunate that the embassy grounds are not normally open for tours.  The property, built on land reclaimed from Manila Bay in the 1930s, is the site of many historical events.

In addition to the grounds and chancery building, an hour was spent in the new Annex building which houses a variety of consular services, including visa issuance.  Opened in 2011, the Annex has over 99 service windows and provides a clean and comfortable waiting area capable of seating over 500 applicants.  There is even a children’s play area (designed and supported by embassy staff).  Obviously, a great improvement over the old visa complex.

Part of the tour included a simulated walkthrough of the entire visa issuance process, starting with entry into the compound and finishing at the last window where a decision is made.  Whenever I have the opportunity to visit an embassy, alone or with a client, I come away with a better understanding of the visa applicant experience.

And on this trip, I also came away with a colorful hat!

 

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EB3-Philippines Retrogression

Beginning May 1st, the cutoff date for Employment-based 3rd preference (EB-3 Philippines) will be rolled back to July 1, 2007 – a substantial set back from the April cutoff date of October 1, 2014.  This retrogression of cutoff dates means that beginning on May 1st, immigrant visas will only be available to persons with a priority date earlier than July 1, 2007.  The period of retrogression is expected to last through the summer, and possibly very much longer.

If you find any of these terms confusing, you may wish to review Basics and Tips for Understanding the Visa Bulletin.

For anyone who has been watching the Visa Bulletin for the last year, retrogression comes as no surprise.  The cutoff date for EB-3 Philippines has advanced 29 months since November, and almost seven years in the last 12 months.

Effect of EB-3 Philippines Retrogression

If your priority date became current in the last year and you filed for permanent residence, you will not be harmed.  Although you will not be granted Permanent Residence until your priority date is current again, you will continue to be eligible for employment authorization.  Having a Permanent Residence application pending is usually much better than continually renewing your H-1B/H-4s.  Also, for those whose application for residence are still pending, do not be too disappointed by this set back.  Remember, it was the exceptionally rapid cut off date advancement that gave you the opportunity to file early for Permanent Residence in the first place.

If your priority date is earlier than October 1, 2014, and you have not filed for Permanent Residence, file quickly.  Properly filed I-485s received by USCIS on or before April 30^th will still be accepted.

Unlike those applicants in the U.S. who already filed for Permanent Residence and are allowed to remain with work permission, retrogression is especially harsh for those waiting outside of the U.S. to consular process.  The rapid advancement of cutoff dates create a false belief that their wait for an immigrant visa will be short.  Unfortunately, that may not be the case.  For immigrant cases still at the National Visa Center, or cases yet to be started, the wait may now be lengthy.

 Special Actions by DOS and USCIS 

The Department of State and USCIS will sometimes take special actions when notified of a pending retrogression for a particular country.

The U.S. Embassy in Manila has already announced a plan to approve as many EB-3 cases as possible before May 1^st.  This includes allowing applicants with interview-ready cases to appear at the embassy without an appointment to try to finalize their immigrant visas.  The instructions for walk-in applicants, and other useful information, can be found in this press release. 

USCIS has also been known to sometimes give special treatment to certain Permanent Resident cases prior to a retrogression.  When workloads permit, some older Philippine EB-3 cases in line to be processed may be given slight preference for final action.  Today I received a Filipino EB3-based Adjustment approval that was not expected for another one or two months.  I’m hoping this is a sign of more approvals to come in the next two weeks.  

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USCIS H-4 EAD Filing Instructions

5/22/15 UPDATE:  The text below is now also included in the 12-page I-765 Instruction Booklet, located at http://www.uscis.gov/i-765.


I normally only post original writings, but for this I will make an exception. 

Below are the USCIS H-4 EAD filing instructions that will later appear in, “Instructions for I-765, Application for Employment Authorization”.

Although USCIS has not formally published these instructions or the new I-765 to be used for H4 EADs, in a few weeks those items will be found at www.uscis.gov/i-765.

Excerpt from future I-765 Instructions for H-4 EAD:

G. Spouse of an H-1B Nonimmigrant--(c)(26). File Form I-765 along with documentation of your current H-4 admission or extension of stay.  You must also submit documentation establishing either that the H-1B principal has an approved Immigrant Petition for Alien Worker (Form I-140), or that your current H-4 admission or extension of stay was approved pursuant to the principal H-1B nonimmigrant’s admission or extension of stay based on sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21).  For your convenience, you may file Form I-765 with Form I-539, Application to Extend/Change Nonimmigrant Status.  However, USCIS will not process Form I-765 (except filing fees), until after USCIS has adjudicated your Form I-539.  You may also file Form I-765 at the same time as Form I-539 and Form I-129, Petition for a Nonimmigrant Worker.  The 90-day period for adjudicating Applications for Employment Authorization filed together with Form I-539 does not begin until USCIS has determined whether you are eligible for the underlying H-4 nonimmigrant status.  Please see the USCIS Web site at www.uscis.gov/I-765 for the most current information on where to file this benefit request. 

1. Proof of Your Status.  You must submit a copy of your current Form I-797 approval notice for Form I-539 or Form I-94 showing your admission as an H-4 nonimmigrant or your most recent approved extension of stay; and 

2.  Proof of Relationship to the Principal H-1B.  You must submit a copy of the marriage certificate for you and the principal H-1B nonimmigrant. 

3.  Basis for Work Authorization.  Acceptable documentation includes: 

a. Approved Form I-140.  Submit evidence that the H-1B principal is the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140).  You may show this by submitting a copy of the H-1B principal’s Form I-797 approval notice for Form I-140; or 

b. H-1B Principal Received AC21 106(a) and (b) Extension.  Submit evidence that the principal H-1B nonimmigrant has received an extension of stay under AC21 106(a) and (b). You may show this by submitting copies of the H-1B principal’s passports, prior Forms I-94, and current and prior Forms I-797 for Form I-129.  In addition, please submit evidence to establish one of the following bases for the H-1B extension of stay: 

Based on Filing of a Permanent Labor Certification Application.  Submit evidence that the H-1B principal is the beneficiary of a Permanent Labor Certification Application that was filed at least 365 days prior to the expiration of the six-year limitation of stay.  You may show this by submitting a copy of a print out from the Department of Labor’s (DOL’s) Web site or other correspondence from DOL showing the status of the H-1B principal’s Permanent Labor Certification Application. If DOL certified the Permanent Labor Certification, you must also submit a copy of Form I-797 Notice of Receipt for Form I-140 establishing that the Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification; or 

Based on a Pending Form I-140.  If the preference category sought for the principal H-1B spouse does not require a Permanent Labor Certification Application with DOL, submit evidence that the H-1B principal’s Form I-140 was filed at least 365 days prior to the expiration of the six-year limitation of stay and remains pending. You may show this by submitting a copy of the Form I-797 Notice of Receipt for Form I-140. 

c.  Examples of Secondary Evidence.  If you do not have any evidence relating to the H-1B principal as requested in a or b above, you may ask USCIS to consider secondary evidence in support of your application for work authorization as an H-4 spouse.  For example, such information may include the receipt number of the H-1B principal’s most current Form I-129 extension of stay or the receipt number of the H-1B principal’s approved Form I-140 petition.  Failure to provide this information about the H-1B principal may result in a delay in the adjudication or denial of your application for employment authorization.

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H-4 EAD Your Personal Q&As Wednesday, April 1, 2015

Updated December 30, 2015

The comments on this post were from a live discussion on H-4 EAD issues held on April 1, 2015. That discussion has ended and this post is now closed to comments. 

 

See more recent H-4 EAD Updates

See How to File I-140 Based H-4 EADs on Your Own.

             
                    U.S. IMMIGRATION LAW

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Blog Comments open on April 1st for questions until 1:00 p.m. CDT.

For those who still may have questions about H-4 EAD processing or eligibility, I will be happy to answer any questions based on the information we now have available.

All questions and my answers will be posted as comments to this posting – no questions will be taken by direct email – so everyone will see all the conversations.

The usual disclaimer:  Any answers to comments are based only on the information presented and in no way should be taken as a substitute for a full consultation with a qualified attorney.  Any comments or answers to comments does not create an attorney-client relationship and the presence of additional facts may lead to starkly different advice.

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Waiting for USCIS H-4 EAD FAQs

We have the Final H4 EAD rule, but we are still left with many questions. 

For the simple case of an H-4 whose spouse has an approved I-140, most questions are answered and everything is fairly simple.  For other scenarios, the rule is vague.

 Here are a some of the H-4 EAD issues awaiting clarification:

--EAD validity after I-140 withdrawal

--H-4 EAD eligibility after I-140 revocation

--Effect of travel on pending H-4 EAD requests

--Ability to file from outside of the country

--Start date of simultaneously filed I-765s

--Gaps in employment authorization in change of status cases

--The big question - §106(a) duration parameters (discussed in detail here) 

--Need for multiple 765 filings when capturing both current and future eligibility?

USCIS has been presented with a lengthy list of H-4 EAD issues for their consideration prior to the publication of H-4 EAD FAQs, anticipated in late April or early May.

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Expected Overhaul of Philippine Immigration Law

After years of planning, there has now been substantial progress towards reforming the immigration laws of The Philippines.  A draft immigration reform bill was approved by the House of Representatives Justice Committee on March 9 before being sent to the Appropriations Committee for review prior to being called up in a House plenary session. 

Included among the many proposed changes are provisions promoting investment and streamlining the immigration processes.

                                Pictured:  Hon. Feliciano Belmonte, Jr,; Attorney Jim Austin

The day after the bill was passed out of committee, it was discussed at a meeting between visiting U.S. immigration law attorneys and the House Justice Committee.  Also discussed during the meeting, hosted and led by House Speaker Feliciano Belmonte, Jr., was the progress made towards resolving several other issues hindering foreign investment in the country. It was a very informative meeting.


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Fact Check: Jeane Napoles' Use of U.S. Property for Citizenship Application?

I have been asked to review statements made in the Philippine media that touched on U.S. immigration law.

Here is the back story.  Jeane Napoles is the daughter of Janet Lim Napoles.  In what has become known in the Philippines as the “pork barrel scam”, the elder Napoles is accused of being the organizer behind a scheme that may have criminally diverted millions of government dollars originally intended to fund various projects throughout the country.  During the investigation it was learned that her daughter, Jeane, is the registered owner of multiple valuable properties, including a luxury Ritz-Carlton condominium in Los Angeles. Jeane Napoles has been charged by the [Philippine] Bureau of Internal Revenue with tax evasion.

Jeane Napoles’ defense to the tax charges, as stated by her attorney, is that the properties were put in her name to meet a requirement for U.S. Citizenship.  That brings us to U.S. immigration law.  I have been asked to judge the validity of this statement.

First, to ensure this is just not a misquote from a single reporter, we review multiple media sources.

“...Jeane acquired the properties from her mother because she was applying for a US citizenship.”  [ABS-CBN News]

“She said her mother Janet had said she placed the properties under Jeane’s name because the fashion designer needs to show she has properties in her bid for US citizenship.”  [inquirer.net]

"Pinangalan namin sa kanya iyan kasi at that time she was applying for a US citizenship. Alam n'yo naman kung mag-apply ka ng citizenship kailangan mo ipakita na meron kang mga holdings, may properties ka,...". [gmanetwork.com]

The essence of the statement remains consistent across multiple news sources and both languages.

So, the question:  “Is property ownership ever a requirement for U.S. Citizenship?”

Answer:  No.  Property ownership is never a requirement for U.S. Citizenship.  Residing in the U.S. over a period of time is a requirement In most - but not all - Citizenship cases, yet there is no requirement that any real property be owned by the applicant.  Ever.

That was easy to answer, but the real question remain as to the source of the money.  I expect courts in The Philippines to be wrestling with that question for years to come.


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H-4 EAD Rule – Some Answers!

Several questions about H-4 EADs were answered in the Final Rule (to be published in tomorrow’s Federal Register).  Yet, not all issues were fully clarified.  You can find the basic rule information anywhere.  Here are some comments on the details:
 

Changes From the Proposed H-4 EAD Rule

EAD Validity Duration.

The proposed rule discussed allowing up to a two-year EAD validity and included a request for comments on alternatives.  The final rule allows the EAD validity date to match the H-4s period of stay, up to a maximum of 3 years.  A very smart improvement over what was initially proposed.

 

Concurrent filing with Changes of Status.

Although not specifically stated in the final rule, it appears that applications for H-4 EADs can be filed concurrently with requests to change status to H-4.  In the proposed rule, every mention of simultaneous filings directly referred only to extensions of status.  Changes of status were never discussed.  However, in the regulatory changes to Form I-765, and now also in the H-4 EAD rule, all written references to concurrent EAD filing are paired with “an Application to Extend/Change Nonimmigrant Status (Form I-539)”.  The elimination of referring only to extensions of status strongly indicate concurrent EAD filings with changes of status will be allowed.

Advance Filing Period.

Requests for H-4 EADs submitted at the same time as a request to change/extend H-4 status (Form I-539) can be filed up to six months before the start date of the EAD.  Six months matches the filing window allowed for extension/change applications.  This is a positive change from the proposed rule which only allowed a four-month advance filing window.

H-4s Will Not Be Required to Show Special Need for the EAD. 

Proving your economic need for an H-4 EAD will not be required.  In the Paperwork Reduction Act portion of the proposed rule, USCIS included time and response calculations that included the Form I-765WS, a form used to document financial need for the extra income that would result from employment authorization.  “DHS has corrected this error” in the final rule.

Marriage Certificate.

The words, “evidence of the spousal relationship” have been added as a requirements for an H-4 EAD.  Most likely this will be satisfied by merely submitting a valid marriage certificate – a requirement that was expected but not listed.  Remember that for some immigration benefits, the applicant must also submit other documents to show the marriage is a true relationship and not just for immigration purposes.  However, the exact wording “evidence of the spousal relationship” can also be found in other immigration provisions and is usually satisfied in those cases by just the certificate alone.

Other H-4 EAD Observations:

Why H-4 EAD Effective Date is 90 Days Out.

Normally this type of rule would have an 30 day effective date.  This rule has a 90 day delay (5/26/15) so it filing will begin after the dreaded “H-1B Cap Season” beginning April 1^st.  The huge number of initial H-1B applications USCIS receives in the first week of April places a large demand on their resources that lasts for many weeks.  By delaying the expected high number of H-4 EAD filings until late May, USCIS can better allocate their resources for maximum efficiency.  Although we hate to wait the extra two months, for those of us who have experienced USCIS mailroom meltdowns in the past, the explanation for the delay is reasonable.

H-4 EAD Eligible if Original I-140 Revoked and Subsequent I-140 Pending?

The final rule provides little help for H-1Bs whose I-140 is revoked after changing jobs, and a new -140 has not been approved.  This creates a situation that is difficult to fully discuss due to the large number of factual variables these cases present.  I will cover revoked I-140s in a later writing when there is more time to explore all the options.

THE BIG UNANSWERED QUESTION: When Does Eligibility Begins under §106(a) and (b)?

First, consider this scenario:  
An H-1B worker requests a 3-year extension that includes the remaining two years from the initial six years, plus an additional year under 106(a).  Mixing 106(a) time with the remainder of the first six years is a common occurrence.

Now, here is the short version of the problem: 
Does H-4 eligibility ONLY begin when the H-1B worker begins the 7^th year, 

            OR

Does H-4 eligibility begin any time the H-1B is working during an single extension period that included time under §106?

A detailed discussion of this issue and its inherent evidentiary problem can be found here.  

The final wording in the new regulation changed little from the proposed rule, and allows H-4 EAD eligibility under §106 if:  

“...the H-1B nonimmigrant’s period of stay in H-1B status is authorized in the United States under sections 106(a) and (b)...” 

Elsewhere in the rule we find the 106(a) requirement described as:

The H-1B “... has been provided H-1B status under sections 106(a)...”. 

“... H-1B has received an extension of stay under AC21 106(a) and (b).” 

“... has been granted status pursuant to §106(a)...” 

When considering that an H-1B’s “period of stay”, or “H-1B status”, or “extension of stay” are all granted by USCIS as a single block of time, these words can be read to cover either eligibility theory.

Since the final rule is vague on this point, perhaps intentionally, an answer will eventually come from USCIS in some form, hopefully as a policy memo and eventually as an inclusion in the USCIS Policy Manual.  

Still, all things considered, a very good rule!

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H-4 EAD - Detailed Summary Soon

Today USCIS announced the Final H-4 EAD Rule will be published tomorrow and applications will be accepted beginning May 26, 2015. 

While this is good news, all we learn from this announcement is the effective date of the new rule.  

Later today I will discuss the details that will appear in the Final Rule.

[Edited to add:  the detailed discussion can be found here]


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H-4 EAD- Wait for the Rule!!

More H-4 EAD information is becoming available as we get closer to the final rule release date.  However, there are still several important questions that remain unanswered.

Problems and issues to be discussed in the final rule were previously discussed here.

To begin with, we now know H-4s will not have to prove “economic necessity” before being issued an H-4 EAD.  As background, some EAD categories require the applicants to submit evidence showing an economic need for working in the United States.  The proposed H-4 EAD rule hinted that proving economic need might be required.  The final H-4 EAD rule will explain that no showing of “need” will be necessary before an H-4 EAD will be granted.

Second, we also know now that the final H-4 EAD rule will not greatly expand the group of H-4s eligible for an EAD.  Many comments to the proposed rule suggested EADs should also be given early to H-4s with spouses who will become 106(a) eligible in the future, H-4 children, and even to any H-4s.  USCIS did not adopt those suggestions.

There are still many H-4 EAD questions unanswered.  For example, applicants can request an H-4 EAD simultaneously with a request to extend H-4 status,  but can you file for H-4 EAD along with a request to change status (i.e. from F-1 or H-1B to H-4)?  Some are saying “yes”, that you can file for an EAD with a change of status, basing their opinion on the recently released wording that will appear in future I-765 instructions.  However, these people are confusing the title of the I-539 Form with the actual action being allowed.  The I-765 instructions will state that you can file simultaneously with your “I-539, Application to Extend/Change Nonimmigrant Status.”  But in all the textual discussions, all references are only to “extensions of stay”.  We will have to wait for the wording of the final rule before we have an answer to this question. 

The biggest question involving H-4 EAD eligibility is not yet answered:  When does H-4 EAD Eligibility under AC21 §106 begin?  The proposed rule allows H-4 EAD eligibility “ “...only during AC21 extension periods granted to the H-1B principal worker ...”.   This view would create major evidentiary issues and limit the availability of H-4 EADs to those who may otherwise qualifying under this provision (discussed in detail here). 

Although we do not know for sure, the new I-765 instructions give a glimmer of hope that USCIS will clarify and expand H-4 EAD eligibility under this AC21 provision.  Instead of using the proposed rule’s eligibility wording of “only during AC21 extension periods”, the I-765 instructions will refer to eligibility if “...the principal H-1B nonimmigrant has received an extension of stay under AC21 106(a) and (b).”  This minor wording change may be significant.  The latter phrase can be read to include eligibility during multi-year extensions that happen to also include time under AC21 106(a).  Nowhere in the proposed rule did they ever use the broader phrase, “has received an extension”. 

Certainly not definitive, but at least slightly hopeful.  Again, we wait for the Final Rule.


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Advance Parole Initiative Explained - [Immigration Executive Actions Update]

One of the more obscure provisions announced as part of the President’s immigration initiatives was to “provide consistency regarding advance parole”.  Few people seem to know why this issue was included.  

Clarifying the effects of Advance Parole is only very small issue when compared to the other actions proposed by the President, but for those few effected by this issue, it can mean the difference between becoming a Permanent Resident now or having to first return to their home country for up to ten years.

To understand this initiative, the concepts of Advance Parole and “Unlawful Presence” must first be explained.

In 1996, Congress passed a law intended to punish those who entered the United States without being inspected by immigration or (in most but not all cases) those who overstayed their permission to be in the United States.  

 In the most simple terms, if a person is Unlawfully Present for over 180 days but less than one year, and then departs the United States, that person is inadmissible to the United States for three years.  If a person is Unlawfully Present for one year or more and then departs the United States, he will be inadmissible for 10 years.  Although it may be possible to obtain a waiver of this inadmissibility, the waiver is not easily granted, nor is it even available to everyone. 

Unlawful Presence has its own unique definition and is not the same as being out-of-status.  I will not cover here the legal details for determining Unlawful Presence, but to understand this administrative initiative, it is important to know that people who accrue over 180 days of Unlawful Presence, and then depart the U.S., may be barred from returning or obtaining Permanent Residence for three years.  Similarly, those with one year or more of Unlawful Presence may face a penalty of ten years. 

Advance Parole is a document requested from USCIS before a person leaves the United States giving permission to return from a trip abroad.  Many different groups are eligible to request Advance Parole, including those registered for Temporary Protected Status, Deferred Action, and those with Permanent Residence or Asylum applications pending with USCIS.

Since 1996, if a person with over 180 days of Unlawful Presence left the United States, even if the trip was authorized by USCIS through the issuance of an Advance Parole, the mere act of departing the U.S. would generate a 3- or 10-year Unlawful Presence bar. Although USCIS included cautions on the Advance Parole document warning warned of possible penalties for leaving the United States, many people did not fully understand the consequences, left the United States, then were later barred from obtaining Permanent Residence – all after departing the United States with permission of the U.S. government.

That problem has existed for more than 15 years, but recently there was a glimmer of relief.

In 2012, the Board of Immigration Appeals redefined the word “departure” in a case called Matter of Arrabally and Yerrabelly.  In essence, the Board ruled that if a person obtained Advance Parole based on a pending application for Permanent Residence, then left the United States, that person has NOT “departed” the U.S. within the meaning and intent of the Unlawful Presence statute.  Consequently, now if a person with over 180 days of Unlawful Presence leaves the U.S. with Advance Parole, they have not “departed” the U.S. and will not create a 3- or 10-year bar Permanent Residence. 

Many thought the Arrabally was the last word on this issue, believing that departures with Advance Parole no longer can trigger an Unlawful Presence bar.  So why do we need a special Administrative Initiative?  Simply because Arrabally did not say what most believed it to say.

Arrabally was a decision specifically based on an Advance Parole issued to a person with a pending Adjustment Application.  The case did not address departures on Advance Paroles issued for any other reasons.  In the two years since Arrabally, USCIS has given mixed signals whether Unlawful Presence bars can be created when departing the U.S. using Advance Paroles granted for reasons other a pending Adjustment Application.  Most local USCIS offices take the position that an Unlawful Presence bar will not be triggered by trips with any Advance Parole.  However, some USCIS field offices are unsure and are still refusing to decide these cases until they receive further guidance from Washington. 
 
Hence, the reason for this special immigration initiative.  The President has directed the Department of Homeland Security to issue legal guidance to the field advising that no Unlawful Presence bar will be produced by departing the U.S. on any Advance Parole.

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Proposed H-4 EAD: The “106(a) and (b)” Problem Explained

Last week I outlined the sections of the proposed rule that USCIS will hopefully clarify in the final rule.  As the time approaches for the final rule to be released, people are asking more questions about the eligibility requirements for the second group of H-4s – when the “...H–1B nonimmigrant’s period of stay in H–1B status in the United States is authorized under sections 106(a) and (b) of [AC21]”.

The basic rule is that H-1Bs are allowed a maximum of six years in H1B status.  Several exceptions exist to this six year limit.  AC21 106(a) is one of those exceptions.  106(a) allows H1B status to be extended in one-year increments beyond the basic six years if the workers’ Alien Labor Certification OR Immigrant Petition (I-140) has been pending for over one year.  The most common scenario for using this provision are when there are delays during the Alien Labor Certification process (audits, appeals, supervised recruitment, etc.) or petition adjudication.

USCIS indicated in the Proposed Rule that the H-1B must actually be in that 106(a) extension time before the H-4 spouse is EAD eligible.  At first reading, this seems simple enough.  Just determine the exact date when the basic six years ended, and then any H-1B time after that must be under a 106(a) extension.  So, on the exact first date after the basic six years, H-4 EAD eligibility will begin.  And there is the problem

106(a) time only begins after six years IN H-1B status, not six years after H-1B status begins.  In many cases, these are two separate dates because only time spent in the U.S. and in H-1B status counts toward the basic six years.  There are many situations where a person is within the H-1B time periods shown on their approval notice, but their time is not being counted towards H-1B status.  For example, any time spend outside of the U.S. does not count against the basic six years of H-1B (you are not an H-1B if you are not in the U.S.).  Similarly, because of delays at the consulate in obtaining that first H-1B visa, it is not uncommon to enter the U.S. weeks or months after the H-1B was approved by USCIS.  The time between the approval notice start date and the U.S. entry is not counted towards the basic six years.  There are many other similar events that will cause the actual end of the basic six years to be much, and sometimes years, later than just the six calendar years that might be indicated if only looking at the H-1B approval notices.

The problem determining the exact date when the basic six years ends is further complicated by the frequent need to request the 106(a) extension at the same time as requesting to “recapture” the non-H-1B time described above, and also to request “remainder” time left on the basic six-years caused by prior USCIS approvals of less than 3-year durations.

As you can see, determining exact beginning dates of 106(a) extensions are not always simple.  USCIS does not specifically track H-1B cases that include 106(a) extensions, and they have acknowledged in the past the evidentiary problems encountered for accurately determining the correct end date of the basic six years.  Of course, for several reasons I need not discuss here, it was rarely important to determine that all six years had been used before requesting the 106(a) extension.  But that will change if the exact beginning date of the 106(a) extension becomes the actual triggering event for H-4 EAD eligibility.

Several suggestions were made in comments to the proposed rule that would make this EAD eligibility ground more expansive and easier to document.  We will have to wait until the Final Rule is released to see what changes were made to this H-4 eligibility category.

 

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NVC Changes Document Handling

On November 12, 2014, the Department of State made a significant change to the way original documents are handled for Immigration Visa Applications.

The National Visa Center (NVC) will no longer require you to mail them the original civil documents, such as police, birth and marriage certificates.  Instead, you will send NVC photocopies of the documents and take the originals to your consular interview.  You will still need to send NVC the affidavit of support containing an original signature.

This action was taken to help reduce the workload of the NVC.  In recent months, the rapid advancing of some cutoff dates resulted in the contractors for NVC being unable to keep up with the increased immigrant visa demand.

This change is really just a step back in time.  It was not that many years ago that we never sent originals to the National Visa Center (or its predecessor TIVPC).  However, now it will be the U.S. Petitioner’s responsibility to be sure the visa Applicant will have ALL of the necessary originals before their consular interview.

The advantages of this new (old) system is that it eliminates the need for original documents to be mailed to the United States, and also reduces the hassle of ensuring that the embassy returns your originals.  Now, at the interview, the consular officer will already have copies of your documents and in most cases will just compare and return your original.

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Early Adjustment of Status Benefits [Immigration Executive Actions Update]

One provision of the President's immigration Executive Actions allows select nonimmigrants with approved I-140s, and their derivative family members, to file their Applications for Adjustment of Status (to become Permanent Residents) without waiting for their priority date to become current in the Visa Bulletin.

Only a brief description of this proposal has been released, although the White House acknowledges that this policy change must go through the formal regulatory process.  The need for formal written rulemaking is obvious:  8 C.F.R. 245.1(a) specifically requires that “... an immigrant visa is immediately available at the time of application”.  A simple policy shift is insufficient to directly contradict a formal regulation.  

The stated purpose of this proposal is to give these intending immigrants the many benefits available to applicants whose Adjustment application has been filed and accepted by USCIS.  So, what are those benefits?

The most obvious benefit, and often the most valued, is multi-year employment authorization for the principal (sometimes dangerous) and derivatives.  Other benefits include the potential availability of advance parole for travel and enhanced access to portability options.

Notice how this advanced-adjustment filing proposal is also very closely tied to two other IAEA initiatives: 1) increased portability for applicants waiting for a current priority date, and, 2) clarification of portability’s “same or similar occupational classification” requirement.

AC21 Section 106(c) allows a worker with an application for Adjustment of Status to change employers for their Permanent Residence if the new job is the “same or similar” when compared to their original position, AND IF the application for Adjustment of Status has been pending over 180 days.  Under today's proposed change, applicants are able to file for Adjustment of Status many years before their priority date is current.  Since the wait for visa availability in many employment-based categories will almost always be over six months, the opportunity to switch employers is greatly increased.

Like most initial announcements, we have few details and many questions.  For those of you who followed the legal discussion on this blog about the proposed H-4 EAD rule, you know that what may appear to be a simple policy idea can become extremely complex when all ramifications of the rule are explored.

There are many questions that come to mind about this new proposed regulation.

Remember, nothing that has been said so far to indicate that this rule would have any effect on priority dates.  No change in the wait to become a Permanent Resident.  The discussion so far is only about the benefits of being able to file the Adjustment application many years earlier then is now allowed.

Will there be any special protections given to derivative children, unaided by the Child Status Protection Act, who age-out after filing for Adjustment and before PR is granted?   How will USCIS (and especially the embassies) view cases where a person obviously ineligible for Adjustment of Status fradulently reaps the benefits of a pending application before being denied residence?  Further, the government talking points only refer to Employment-Based cases.  Will this rule also cover those occasional Family-based cases where the applicant is in a lawful nonimmigrant status and thus also Adjustment-eligible?

Few facts, but many questions, and the biggest is, “When”?  Conventional wisdom says a regulatory change takes at least six months, usually more.  It is also possible that we will never see this provision in effect if Congress acts on immigration reform before the regulatory process is completed.  However, there is a also very small possibility that USCIS may effect this change as an Interim Rule with a request for comments, allowing the policy to be in effect while the regulatory process is ongoing. 

More updates after more facts are disclosed.  Stay tuned...

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