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H-4 EAD FAQ

Starting May 26, 2105,certain H-4 spouses of H-1B holders can file for an Employment AuthorizationDocument (EAD).  The fullregulation has just been published. 
Musillo Unkenholt has hadmany questions from clients and friends of the firm.  We have published these in this FAQ.
CanI file before May 26, 2015?
No.  The USCIS will not accept EAD applicationsuntil May 26, 2015.
Howlong will it take the USCIS to process the EAD Application?
Traditionally EADApplications take 90-120 days until approval.
CanI work upon the filing of the EAD Application?
No.  The EAD must be approved?
Whoqualifies for the new H-4 EAD card?
Certain H-4 spouses mayfile for the new H-4 EAD.  Children whohold H-4 status are ineligible for the EAD.
WhichH-4 spouses may file for an EAD?
In order to decide if youqualify for the H-4, we must look to the underlying H-1B status holder.  The USCIS elected to apply the rule first setforth in Section106 of AC21. The H-1B worker must either:

A.  Hold an approved I-140,Petition for Alien Worker.  The approvedI-140 does not need to be from his present employer; or
B.  Have a priority datethat is at least one year old.  Apriority date can be established by the filing of a PERM Application or a FormI-140.
Mayan H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B)one year has passed since the filing of a PERM or I-140?
No.  The USCIS looks to the H-1B worker to meet Aor B, above.  It is irrelevant if the H-4meets A or B.
Arethere any limitations on the work that I can perform on an H-4 EAD?  For instance, is there a prevailing wage?  Am I limited only to certain types of jobs?
No.  There are no such limitations.  You can work for any employer, at any rate(above minimum wage), and in any occupation.
Whatshould I do if I want to file an H-4 EAD?
EAD Applications do notrequire an attorney’s assistance, although many people find it helpful to havean attorney assist in the process.  Ifyou would like MU Law to help, please contactus.

H-4 EAD RULE IS EFFECTIVE MAY 26

USCIS hasjust announced that the long-awaitedH-4 EAD rule will go into effect on May 26, 2015.
Under the new H-4 EAD rule, the H-4spouse may obtain an EAD card in two instances.   (1) Either the principal H-1B worker has tohave had a PERM Application pending for at least one year or (2) the principal H-1Bworker has to have an approved I-140. 
H-4 spouses who meet one of the twoconditions may file an I-765, Application for Employment Authorization.  Ordinarily, I-765 Applications are approved in90-120 days.  Accordingly, H-4 spouseswho qualify should be able to begin working in September 2015.

NON-IMMIGRANT MAINTENANCE OF STATUS: F-1 & PERIODS OF AUTHORIZED EMPLOYMENT

Generally, all persons in a non-immigrantclassification are required to maintain their immigration status for theduration of their stay in the U.S. This issue is of particular importance as weapproach the impending 2016 H-1B CAP season. A prospective employee in a non-immigrantstatus must demonstrate compliance and maintain status at the time of the H-1Bfiling. Failure to maintain the status can cause a denial in the prospectiveemployee’s H-1B petition.

More recently, the USCIS hasnarrowly focused on F-1 students and particularly whether the studentmaintained status during any period(s) of authorized employment. The authorizedperiods of employment may include any work performed while engaged in OptionalPractical Training (OPT) or Curricular Practical Training (CPT).

There are 4 primary characteristicsthat serve as evidence of the student’s maintenance of status while engaged inOPT/CPT:  
  1. The student was enrolled full-timeeach semester;
  2. The student was engaged infull-time employment while on OPT/CPT (or part-time work if so designated onthe SEVIS Form I-20);
  3. The CPT was an integral part of thestudent’s degree program; and  
  4.  The student engaged in CPT work aftercompleting 1 year of academic studies. 
In their discretion, the USCIS canrequest for additional clarification of the student’s academic and employmenthistory. And ultimately the agency can issue a denial of the H-1B petition whenthe evidence provided deviates from the above mentioned characteristics.    

PREDICTING THE VISA BULLETIN FOR 2015

AILA regularlychecks in with Charlie Oppenheim, who is the Department of State’s guru on VisaBulletin numbers.  Their most recent CheckIn with Charlie contains projections for 2015.  Here are his projections for several majorvisa categories.
India EB-2.  This category had stagnated for a long timeuntil the recent March 2015 Visa Bulletin that progressed the date by 16months, to January 2007.  Charlie expectsthat India EB-2 will continue to progress at a very steady rate in the upcomingmonths.
Philippines EB-3.  Demand for Philippine EB-3 remains lower thanexpected, which is good news for those in this category.  He does not see the demand on the horizon,which leads to his projection that Philippine EB-3 should run parallel toWorldwide EB-3.  He cautions that if thenursing demand returns, a correction may be required for this category.
Worldwide EB-3. The Worldwide EB-3 hasadvanced in the past few months in order to spur demand.  If the demand continues to stay soft, theprogressions will continue.  If thedemand picks up, the Worldwide EB-3 number will slow down.
China EB-2 and EB-3.  Low demand for Chinese family-based visas hasbuoyed the China EB-2 and EB-3 categories. The EB-2 continues to run behind the EB-3 category, although the gapbetween the two appears to be tightening. 

MARCH 2015 VISA BULLETIN

The Department of State has just released the March 2015 Visa Bulletin.  This is the sixth Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  This is one of the most favorable Visa Bulletins in years and likely reflects the decreased demand for US visas during the recession.
The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date.  These are all now at June 2014, which is the closest to current they have been in many years.
India EB-2 had a jump in dates as well.  It moved to January 2007, representing a 2 year increase int he last two months.   Even India EB-3 reached a milestone, progressing into 2004.
The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.
Employment- Based
All Other
 CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01SEP10 01JAN07 C C
3rd 01JUN14 22OCT11 01JAN04 01JUN14 01JUN14

POSSIBLE LEGISLATION: THE STARTUP ACT

A new bill called “The Startup Act” wasintroduced in the Senate last week to benefit immigrant entrepreneurs and thosein the STEM (Science, Technology, Engineering, and Mathematics) fields.  The Startup Act states that new companiescreate jobs in the US and that entrepreneurs must be free to work in the US andto hire employees to get the US back to work.
The Startup Act offers the following three keybenefits:
1.      ConditionalPermanent Residency for Those in STEM Fields.
Aliens holdinga master’s or doctoral degree in a STEM field from a US institution can applyfor Conditional Permanent Residence (CPR) for up to one year after their F-1studies conclude.  CPR is a temporarygreen card, valid for a limited period of time and contingent on the green cardholder completing certain required actions. At the end of the temporary green card validity period, the applicantmust have completed the required actions to obtain a permanent green card,valid for ten years.
To qualify forCPR under this part of the Startup Act, the applicant must be “diligentlysearching” for an opportunity to become gainfully employed in a STEM fieldoccupation.  The alien can be granted CPRfor up to five years and can remove the conditions and obtain a permanent greencard, or naturalize and become a US Citizen after the five year period,provided the applicant has been employed in a STEM occupation for the durationof the five year period.
2.      ConditionalPermanent Residency for Entrepreneurs.
The StartupAct provides that immigrant entrepreneurs can be granted CPR for up to fouryears.  The CPR holder is eligible toapply for a permanent green card if:
·        the alienholds F-1 or H-1B status
·        during thefirst year of the CPR, the alien
o  registers anew business in the US
o  the alien’sbusiness employs at least full-time employees who are not members of thealien’s family
o  the alieninvests or raises capital of $100,000
·        during theremaining three years of the CPR, the alien employs at least five full-timeemployees who are not members of the alien’s family
3.      Eliminationof Per Country Caps and Rollover of Unused Green Cards.
Finally, theStartup Act phases out the per country caps on green cards over a three yearperiod.  It also provides for therollover of unused green cards.

KNOWN EMPLOYER PROGRAM FOR CANADIAN COMPANIES

By late 2015, The Department of HomelandSecurity (DHS) is expected to launch a test program with the Canadiangovernment. The initiative is designed to streamline adjudication of certaintypes of employment-based immigration benefit requests filed by eligible U.S.employers. Essentially, the goal is to aid U.S.– Canada business travel.  
The pilot program emerged under the U.S. andCanada Beyond the Border initiative. The latter allows both countries to work together to address threats within, at, and awayfrom their borders, while expediting lawful trade and travel. And in doing so,the pilot program furthers the binational commitment under the NorthAmerican Free Trade Agreement.
The Known Employer program will facilitatelegitimate cross-border business travel along the northern border ports ofentry. Specifically, the program targets to: 
  • Make adjudications more efficient and less costly.
  • Reduce paperwork and delays for both the department and U.S. employers who seek to employ foreign workers.

This is notthe first program of its kind. The DHS has initiated a trusted employer conceptin the Philippines with its Priority Interview Program and  Business Executive Program in India. 

H-1B TELECONFERENCE ON FEB 4

** REMINDER **

In anticipation of the H-1B cap filing date of April 1, 2015, MU Law will be holding a free teleconference for our clients on February 4, 2014 at 2PM / 11AM PT.  Interested clients should email MU’s Annalisa Smith, who can register you for the teleconference.

Last year the H-1B cap was reached in the first week; we expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2015.

H-1B cap-subject petitions include:
* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school
* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1
* H-1B workers with a cap exempt organization
* Prospective international employees currently living abroad

In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

THE BEST PROOF THAT THE H-1B IS NOT ABOUT TAKING JOBS

In 2009, a mere9,000 H-1Bs were received in the first month of H-1B processing.  It would be 264 days before the H-1B cap wasreached.  In 2010, it took 300 days untilthe H-1B cap was reached.  In 2011, therewere 236 days between the April 1, 2011 cap opening and the November 23, 2011cap being reached.  Not coincidentally,the USemployment rate from 2009-2011 ranged between eight and ten percent.
On the other hand,the H-1B cap was reached on the very first day in 2007, 2008, 2013 and 2014,mirroring the low unemployment rate.
 
The lack of H-1B petition filings in years when the unemployment rate is high is compelling evidenceagainst the argument that internationally-trained workers are being used todisplace American workers and lower US workers’ salaries.
Why?  Because if H-1B visa labor was being usedprimarily to lower US workers’ salaries, then H-1B filing numbers would not correlate with US unemployment rates.   Ifanything, the reverse would happen because the incentive to reduce workers’salaries is likely greater in a recessed economy, not less.
This logic isstraightforward and it is a shame that otherwisesuccessful people do not see employment visas for what they are — tools for growing industries to fill labor shortages.  Organizations — and governments — work better when they work ondata and not on nonsense.

H-1B TELECONFERENCE FEB 4, 2015

In anticipation of the H-1B capfiling date of April 1, 2015, MU Law will be holding a free teleconference forour clients on February 4, 2014 at 2PM / 11AM PT.  Interested clientsshould email MU’s Annalisa Smith,who can register you for the teleconference.

Lastyear the H-1B cap was reached in the first week; we expect that the demand willbe even greater this year.  It is imperative that all H-1B cap-subjectpetitions are filled on April 1, 2015.

H-1Bcap-subject petitions include:
*International students working on an EAD card under an OPT or CPT program afterhaving attended a U.S. school
*International employees working on a TN may need an H-1B filed for them inorder for them to pursue a permanent residency (green card) case
*Prospective international employees in another visa status e.g. H-4, L-2, J-1,F-1
*H-1B workers with a cap exempt organization
*Prospective international employees currently living abroad

Inaddition to the H-1B cap discussion, MU lawyers will also provide anemployment-based immigration legislation update.
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Musillo Unkenholt LLC is a full-service immigration law firm headquartered in Cincinnati, Ohio, serving clients throughout the United States and the world.

Our attorneys have vast experience in an array of immigration processes.

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302 West Third Street, Suite 710
Cincinnati, OH 45202

Phone: 513.381.VISA (8472)

info@muimmigration.com

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