H-4 Spouses Can Get Work Authorization

The USCIS announced today that it will begin to extend employment authorization to certain H-4 visa holders.  USCIS will begin to accept H-4 employment authorization applications on May 26, 2015.  In order to be eligible for an H-4 Employment Authorization Document (EAD) an individual must meet one of the following criteria:

H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

This is great news for clients who have an approved I-140 but are unable to submit an Adjustment of Status application because of priority date retrogression.  We will continue to monitor developments on this change and will begin preparing H-4 EAD applications for clients as we get closer to the May 26, 2015 filing date.

H-1B Cap Filing Tips

With the high demand for the limited H-1B numbers in recent years, it has become very important to avoid having USCIS return a case due to incorrect filing.  USCIS must accept new H-1B cases during a 5-business day window starting on April 1st.  However, if a case is returned due to improper filing, it will miss the filing window.
The following are some recommendations to be sure an H-1B case is in a position to be accepted by USCIS for processing.

 

LCA: H-1B petitions require a properly executed LCA.

 

Signatures: Original signatures are required on the forms, LCA and company letter.

 

All Questions Answered: It is important to be sure all questions have been answered and that information provided is consistent throughout the entire petition.

 

Correct Service Center: Each case will have a specific regional service center it must be mailed to, which is based on the location of the job opportunity.

 

Checks: Verify that correct check amounts are being included with each case.  Most H-1B petitions require multiple filing fee checks.

 

Supporting Documents: Each H-1B petition must include documentation about the company and beneficiary to support the case.

 

While it is also important to file complete cases to avoid requests for evidence, it is most important to file a case that will be accepted and receipted by USCIS.  Issues that lead to a request for evidence will not impact a case’s acceptance for purposes of receiving one of the limited H-1B numbers.

More H-1B Numbers Coming?

While this new congress is only days old, there has been much speculation on whether new immigration reform for 2015 might benefit companies who employ highly skilled workers.  Senator Orrin Hatch (Utah – R) has been sworn in as the President Pro  Tempore of the Senate and he has given indications over the past several weeks that he looks forward to passing immigration legislation in early 2015 that would increase the number of visas available to highly skilled workers.  There seems to be a good chance that Hatch will reintroduce the 2013 Immigration Innovation act (I-Squared) which would dramatically increase the number of H-1Bs available from the current 85,000 to 115,000.  The act also contained provisions to increase the number of available H-1Bs up to 300,000, depending on economic circumstances.

I-Squared could carry necessary bipartisan support and in 2013 garnered significant support from the CEOs and leaders of Apple, Google, Yahoo, Facebook, Cisco and others.  These are good indications that we could see a much needed increase in H-1B availability in the next several months.  Graham Adair continues to monitor these discussions closely and will provide updates as they become available.

Big Changes in U.S. Immigration

Last night, President Obama announced some significant changes to U.S. immigration policy that will take effect in coming months.  Some of the items announced, such as suspending deportation proceedings for certain groups of people, will go into effect immediately.  Other aspects of the plan will require input from U.S. Citizenship and Immigration Services, the State Department, and Immigration and Customs Enforcement, among others, and will likely require changes to the current regulations.

 

The biggest takeaways, from a business immigration standpoint, from the President’s speech include:

1. ICE will work to “expand and extend the use of optional practical training (OPT) for foreign students.”

2. The USCIS will provide clearer guidance on adjustment of status (I-485) portability so that individuals with pending applications have greater career and job flexibility during the green card process.

3. The USCIS will look to provide EAD work cards and advance parole travel authorization to those who have approved I-140s with retrogressed priority dates.

4. The USCIS will allow H-4 spouses to seek Employment Authorization Documents if the H-1B holder is “on the path to lawful permanent resident status.”

5. The USCIS will issue more clear guidance with respect to what qualifies as “specialized knowledge” in the L-1B context in an effort to improve consistency and reinvigorate employers’ confidence in the visa status.

6. The USCIS and State Department are seeking a method and means to modernize the Visa Bulletin and allocation process to ensure that backlogs are reduced and the process is workable and usable for all intending permanent residents.

7. The USCIS will enhance the National Interest Waiver process to allow greater flexibility in adjudications and permit foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.

8. The USCIS will create a parole system for “eligible inventors, researchers and founders of start-up enterprises who do not yet qualify for a National Interest Waiver, but who: (1) Have been awarded substantial U.S. investor financing; or (2) Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”

Graham Adair will monitor the development of these policies and changes in regulation as they work their way through the various government agencies.

November 2014 Visa Bulletin: India EB-2 Retrogression

As expected, increased demand in EB-2 category for India required the retrogression of the cut-off date from May 1, 2005 to February 15, 2005. In contrast, potential visa availability is expected for other employment-based categories in the upcoming months.

 

For example, EB-2 China’s cut-off date is expected to have a 3-5 week forward movement. EB-3 China, with a cut-off date of January 1, 2010 is expected to have a rapid forward movement.  The rapid advance of the cut-off date may result in a significant increase in demand for visas.  Meanwhile, EB-3 India has little movement at all.  Lastly, EB-3 Philippines is currently at the worldwide cut-off date of June 1, 2012, but increased demand may require “corrective” action later in the fiscal year.

 

For more information on the November 2014 Visa Bulletin, please visit: http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-november-2014.html

 

If you have any questions about the visa bulletin or other immigration matters, please feel free to contact us at info@grahamadair.com.

October 2014 Visa Bulletin: Imminent Retrogression of EB-2 India

In the October 2014 visa bulletin, the cut-off date for EB-2 India is May 1, 2009. However, given current demand, the cut-off date for EB-2 India may retrogress as early as November. It is possible that the cut-off date may retrogress from May 1, 2009 to a date in early 2005. A major factor to the anticipated retrogression is attributed to the large volume of EB-3 to EB-2 upgrades in the preceding months.

 

Following our September 2014 Visa Bulletin alert, the maximum number of available EB-2 immigrant visas for India for FY 2014 was reached. EB-2 visas for India are “unavailable” until October 1, 2014. USCIS may accept and process EB-2 India cases with priority dates earlier than May 1, 2009. However, the cases cannot be acted upon until October 1, 2014.

 

In contrast, demand for employment-based and family-based visas for the Philippines continues to decrease. As a result, cut-off dates continue to advance in these categories. For October 2014, the EB-3 Philippines cut-off date is October 1, 2011.

 

For more information on the October 2014 Visa Bulletin, please visit: http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-october-2014.html

 

Graham Adair will notify our clients as soon as the new cut-off date for EB-2 India is released. If you have any questions about the visa bulletin or other matters, please feel free to contact us at info@grahamadair.com.

USCIS Issues Policy Guidance on Customer Service

USCIS has issued a new customer service manual. The guidance is intended to be comprehensive and controlling. It supersedes any previous USCIS guidance on customer service.

These are some of the highlights:

Expedited Processing

Applications that were not filed via Premium Processing may be eligible for expedited processing if it meets one or more of the following criteria:

• Severe financial loss to company or person;
• Emergency situation (i.e. applicant is gravely ill);
• Humanitarian reasons (i.e. outbreak of war in the home country);
• Certain nonprofit organizations;
• Department of Defense or national interest situation;
• USCIS error; or
• Compelling interest of USCIS.

Please note that USCIS does not consider petitions that have Premium Processing Service available. USCIS may request additional documentation to support expedite requests.

Requests for expedited processing can be done in one of the following ways:

• Call the National Customer Service Center (NCSC) at 1-800-375-5283.  The NCSC will then forward the Service Request to the office with jurisdiction over the case;
• Schedule an InfoPass appointment at a local USCIS office; or
• Write a letter to the field office or service center processing the case.

Expedite requests can be done for cases that are approaching regulatory processing times. For example, an application for EAD work authorization can be given a service request to expedite when it has been pending for more than 75 days.

Email Correspondence

USCIS service centers provide designated email boxes for customers to inquire about their pending or adjudicated petitions or applications. The email addresses for the Service Centers are:

• California Service Center: csc-ncsc-followup@dhs.gov
• Vermont Service Center: vsc.ncscfollowup@dhs.gov
• Nebraska Service Center: ncscfollowup.nsc@dhs.gov
• Texas Service Center: tsc.ncscfollowup@dhs.gov

Prior to submitting an email inquiry, customers must have called the NCSC to submit a service request. If the customer has not received a response within 15 days of the call to the NCSC, then the customer can email the service center where the case is pending. The email must include the service request reference.

If no response is received within 21 days of the email to the service center, customers may contact the USCIS Headquarters Office of Service Center Operations at: SCOPSSCATA@dhs.gov.

Complaints

There are several ways to submit complaints:

• Call NCSC and ask to speak with a supervisor;
• Make an InfoPass appointment at a local USCIS office;
• Written complaint by mail, email, or fax;
• Contact the Office of Inspector General directly; or
• Contact USCIS headquarters directly.

The customer service manual directs that customers should not be expected to know where to first submit a complaint, and that complaints should not be dismissed because the proper procedure was not followed.

The manual further directs that all complaints should be responded to in writing, by phone, or verbally (where the complaint is submitted in person). Responses should explain steps taken to resolve the issue. In cases where the complaint cannot be resolved in a reasonable time, the response should acknowledge the receipt of the complaint, when a resolution is expected, and any additional action that needs to be taken.

Graham Adair is committed to providing excellent customer service to its clients. We closely monitor all cases and work with USCIS as necessary to proper outcomes. If you have any questions or concerns on how your case is being handled by USCIS, please feel free to contact us at info@grahamadair.com.

172,500 H-1Bs Received

Today USCIS announced that it received approximately 172,500 H-1B petitions in the H-1B cap filing period between April 1 and April 7, 2014. USCIS has completed the computer-generated lottery to select the petitions that will be processed under this year’s cap.

The lottery was first completed for the petitions eligible for the 20,000 H-1Bs available under the U.S. Master’s Degree cap; any petitions not selected in that lottery were then included in the lottery for the 65,000 available H-1Bs in the regular cap.

USCIS announced that premium processing will begin no later than April 28, 2014. They will begin the process of returning petitions and filing fee checks over the coming weeks. We are estimating that we should have confirmation on nearly all cases by the end of May.

Graham Adair will begin notifying clients as soon as filing fee checks are deposited by USCIS. Please contact us directly at info@grahamadair.com with questions.

FY 2015 H-1B Cap Reached

Today USCIS announced that it has received sufficient H-1B petitions to reach the annual limit for both the regular and advanced US degree caps. The computerized random selection lottery for the US master’s cap will be conducted first. Cases not selected will then be dropped into the lottery for the regular H-1B cap. So, in essence, US master’s cap cases will have two opportunities for selection.

We are hoping to get specific numbers from USCIS by next week. We anticipate that USCIS will soon start depositing checks on cases that are selected. It could be a few weeks, and maybe even until mid-May, before receipts begin showing up for cases filed with regular processing. For cases filed with premium processing, courtesy email notifications should begin by the middle of this month.

Graham Adair will begin notifying clients as soon as checks are deposited. Please contact us directly at info@grahamadair.com with questions.

Telephone Scam Update

We reported last month that USCIS issued a notice regarding a scam wherein some companies and individuals who had filed recent petitions received phone calls saying that errors were made and payment was required to correct immigration records. It has come to our attention that similar scams are ongoing.

 

 A recent one involves a scammer calling the individual’s home from a number that shows up on caller ID as 911. The caller claims that there was some deficiency in the initial petition, that the individual is undocumented, and that s/he, therefore, has been scheduled for deportation. To get updated documentation and avoid deportation, the person is told to pay a fee over the phone.

It is not clear how scammers are getting personal contact information. We will continue to work with AILA and USCIS to determine how this can be avoided. If you are targeted by this or another scam, please contact us so that we can help you report it to the Federal Trade Commission.

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