H-4 EAD RULE IS EFFECTIVE MAY 26

USCIS has just announced that the long-awaited H-4 EAD rule will go into effect on May 26, 2015.

Under the new H-4 EAD rule, the H-4 spouse may obtain an EAD card in two instances.   (1) Either the principal H-1B worker has to have had a PERM Application pending for at least one year or (2) the principal H-1B worker has to have an approved I-140. 

H-4 spouses who meet one of the two conditions may file an I-765, Application for Employment Authorization.  Ordinarily, I-765 Applications are approved in 90-120 days.  Accordingly, H-4 spouses who 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-immigrant classification are required to maintain their immigration status for the duration of their stay in the U.S. This issue is of particular importance as we approach the impending 2016 H-1B CAP season. A prospective employee in a non-immigrant status must demonstrate compliance and maintain status at the time of the H-1B filing. Failure to maintain the status can cause a denial in the prospective employee’s H-1B petition.

More recently, the USCIS has narrowly focused on F-1 students and particularly whether the student maintained status during any period(s) of authorized employment. The authorized periods of employment may include any work performed while engaged in Optional Practical Training (OPT) or Curricular Practical Training (CPT).

There are 4 primary characteristics that serve as evidence of the student’s maintenance of status while engaged in OPT/CPT:  

1. The student was enrolled full-time each semester;
2. The student was engaged in full-time employment while on OPT/CPT (or part-time work if so designated on the SEVIS Form I-20);
3. The CPT was an integral part of the student’s degree program; and  
4.  The student engaged in CPT work after completing 1 year of academic studies. 

In their discretion, the USCIS can request for additional clarification of the student’s academic and employment history. And ultimately the agency can issue a denial of the H-1B petition when the evidence provided deviates from the above mentioned characteristics.    

PREDICTING THE VISA BULLETIN FOR 2015

AILA regularly checks in with Charlie Oppenheim, who is the Department of State’s guru on Visa Bulletin numbers.  Their most recent Check In with Charlie contains projections for 2015.  Here are his projections for several major visa categories.

India EB-2.  This category had stagnated for a long time until the recent March 2015 Visa Bulletin that progressed the date by 16 months, to January 2007.  Charlie expects that India EB-2 will continue to progress at a very steady rate in the upcoming months.

Philippines EB-3.  Demand for Philippine EB-3 remains lower than expected, 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 to Worldwide EB-3.  He cautions that if the nursing demand returns, a correction may be required for this category.

Worldwide EB-3. The Worldwide EB-3 has advanced in the past few months in order to spur demand.  If the demand continues to stay soft, the progressions will continue.  If the demand picks up, the Worldwide EB-3 number will slow down.

China EB-2 and EB-3.  Low demand for Chinese family-based visas has buoyed the China EB-2 and EB-3 categories.  The EB-2 continues to run behind the EB-3 category, although the gap between 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” was introduced in the Senate last week to benefit immigrant entrepreneurs and those in the STEM (Science, Technology, Engineering, and Mathematics) fields.  The Startup Act states that new companies create jobs in the US and that entrepreneurs must be free to work in the US and to hire employees to get the US back to work.

The Startup Act offers the following three key benefits:

1.       Conditional Permanent Residency for Those in STEM Fields.

Aliens holding a master’s or doctoral degree in a STEM field from a US institution can apply for Conditional Permanent Residence (CPR) for up to one year after their F-1 studies conclude.  CPR is a temporary green card, valid for a limited period of time and contingent on the green card holder completing certain required actions.  At the end of the temporary green card validity period, the applicant must have completed the required actions to obtain a permanent green card, valid for ten years.

To qualify for CPR under this part of the Startup Act, the applicant must be “diligently searching” for an opportunity to become gainfully employed in a STEM field occupation.  The alien can be granted CPR for up to five years and can remove the conditions and obtain a permanent green card, or naturalize and become a US Citizen after the five year period, provided the applicant has been employed in a STEM occupation for the duration of the five year period.

2.       Conditional Permanent Residency for Entrepreneurs.

The Startup Act provides that immigrant entrepreneurs can be granted CPR for up to four years.  The CPR holder is eligible to apply for a permanent green card if:

·         the alien holds F-1 or H-1B status

·         during the first year of the CPR, the alien

o   registers a new business in the US

o   the alien’s business employs at least full-time employees who are not members of the alien’s family

o   the alien invests or raises capital of $100,000

·         during the remaining three years of the CPR, the alien employs at least five full-time employees who are not members of the alien’s family

3.       Elimination of Per Country Caps and Rollover of Unused Green Cards.

Finally, the Startup Act phases out the per country caps on green cards over a three year period.  It also provides for the rollover of unused green cards.

KNOWN EMPLOYER PROGRAM FOR CANADIAN COMPANIES

By late 2015, The Department of Homeland Security (DHS) is expected to launch a test program with the Canadian government. The initiative is designed to streamline adjudication of certain types 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. and Canada Beyond the Border initiative. The latter allows both countries to work together to address threats within, at, and away from their borders, while expediting lawful trade and travel. And in doing so, the pilot program furthers the binational commitment under the North American Free Trade Agreement.

The Known Employer program will facilitate legitimate cross-border business travel along the northern border ports of entry. 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 not the first program of its kind. The DHS has initiated a trusted employer concept in the Philippines with its Priority Interview Program and  Business Executive Program in India.