USCIS Message: Reminder for H-4 Applicants When Traveling Abroad

From USCIS Public Engagement, 03/24/2016

USCIS would like to remind individuals applying for a change of status to H-4 that if you travel abroad before we approve your Form I-539, Change of Status (COS) application, we will consider your application to be abandoned. This means we will deny your COS application. If you filed your Form I-765, Application for Employment Authorization, and travel abroad before your COS is approved, it will be considered abandoned, along with your I-539 application. This will result in a denial of your Form I-765 even if you are re-admitted as an H-4 nonimmigrant.  If re-admitted as an H-4 nonimmigrant, you would need to file a new Form I-765, with fee, in order to apply for employment authorization.

For more information, see the FAQs: Employment Authorization for Certain H4 Dependent Spouses webpage at www.uscis.gov.

Employment Authorization for Certain H-4 Dependent Spouses Final Rule in Effect Today, May 26, 2015

From USCIS, 05/26/2015

Certain H-4 dependent spouses may now apply for employment authorization under the H-4 rule. On February 24, 2015, USCIS announced that effective today, May 26, 2015, the Department of Homeland Security (DHS) would begin accepting applications for employment authorization from certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status.

Starting today, you may apply for employment authorization under this rule if your H-1B nonimmigrant spouse:

• Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Has 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 (AC21). AC21 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.

For more information on applying for employment authorization under the H-4 rule, please visit the Employment Authorization for Certain H-4 Dependent Spouses Web page and the list of Frequently Asked Questions that USCIS has compiled since they announced the H-4 rule in February.

USCIS Publishes Filing Guidance for Certain H-4 Dependent Spouses

USCIS has published information to help eligible H-4 dependent spouses who want to apply for employment authorization under the Employment Authorization for Certain H-4 Dependent Spouses final rule.
You can view the information on:

• The Employment Authorization for Certain H-4 Dependent Spouses Web page, and
• The list of Frequently Asked Questions that we have compiled since we announced the H-4 rule in February.

Please note that you may not apply for employment authorization under this rule until May 26, 2015. Until the H-4 rule takes effect on May 26, 2015, USCIS will not accept any Form I-765, Application for Employment Authorization requesting employment authorization based on your H-4 status. If you submit a Form I-765 before May 26, 2015 USCIS will reject your application and return it and the filing fee to you. You would then need to re-submit the application on or after May 26, 2015.

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence

From www.uscis.gov, 02/24/2015

U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

Finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs. 

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” Rodríguez said. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Eligible individuals include certain 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.

DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

For more information on USCIS and its programs or about this rule and filing procedures, please visit uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

USCIS Director Says H-4 EAD Rule is Near Completion

From Fragomen.com, 01/22/2015

In a conference call with stakeholders, U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez said that his agency is completing work on a regulation that allows certain H-4 nonimmigrants to apply for employment authorization, with implementation “close at hand.” Director Rodriguez offered no concrete details or timelines, but he reassured stakeholders that no policy issues remain unresolved. Rather, the agency is finalizing administrative matters concerning issuance of employment authorization documents (EADs) to eligible H-4 nonimmigrants. The regulation was originally slated for publication in December 2014. 

As originally proposed, the rule would allow an H-4 nonimmigrant to apply for employment authorization if his or her H-1B spouse (1) is the beneficiary of an approved Form I-140 immigrant worker petition; or (2) is the beneficiary of a labor certification application or an I-140 petition that was filed on his or her behalf 365 days or more in the past and is seeking or has obtained an extension of H-1B status beyond the sixth year on the basis of the pending permanent residence case. 

What’s Next for the H-4 EAD Rule 

USCIS must submit a final version of the regulation to the Office of Management and Budget (OMB) for review and clearance. After OMB gives its approval, the rule will be published in the Federal Register and an implementation date announced. USCIS is expected to begin accepting H-4 EAD applications soon after the rule is published. 

Details of the final rule -- including information about EAD eligibility and application requirements -- are confidential and will not be released until the rule is slated for publication. 

What This Means for Employers and Foreign Nationals 

Once the rule is implemented, eligible H-4 nonimmigrants will need to file a Form I-765 application for employment authorization, along with documentation of their H-1B spouse's permanent residence case. USCIS is expected to announce specific application procedures and requirements when the regulation is finally released. 

English Courses for Spouses

The Language Institute offers six-week courses designed for spouses of Georgia Tech employees, students and visiting scholars.

Everyday Conversation

Beginning-Low Intermediate Classes

• Aug. 26 – Oct. 2, Tuesdays and Thursdays,10 a.m. to 11:30 a.m. Learn and practice vocabulary and idiomatic phrases needed to communicate in everyday life. 
• Meeting Dates: Aug. 26, 28; Sept. 2, 4, 9, 11, 16, 18, 23, 25, 30; Oct. 2

American Pronunciation

Intermediate to Advanced Classes

• Aug. 26 – Oct. 2, Tuesdays and Thursdays, Noon to 1:30 p.m. Learn what aspects of your pronunciation may be interfering with how well your listeners understand you. You will learn strategies and techniques that you can use to make your pronunciation more comprehensible to listeners who may not be familiar with international accents. 
• Meeting Dates: Aug. 26, 28; Sept. 2, 4, 9, 11, 16, 18, 23, 25, 30; Oct. 2

For more information and to register, click here: GT | Georgia Institute of Technology :: Campus Calendar - English Courses for Spouses of Tech Students

DHS Announces Proposals to Attract and Retain Highly Skilled Immigrants

From the Department of Homeland Security, 05/06/2014

WASHINGTON — As part of the Administration’s continuing commitment to attract and retain highly skilled immigrants, the Department of Homeland Security (DHS) today announced the publication of two proposed rules, including a rule to extend employment authorization to spouses of certain H-1B workers, and a proposal to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining in the United States. 

Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas.  “These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

• Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers 

This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would:

• Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
• Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 

• Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

For more information, please visit www.dhs.gov.

Proposed Rules on Work Authorization for Certain H-1B Dependents and Others Expected to Advance

From Fragomen.com, 04/10/2014

Two highly anticipated proposed regulations will soon advance to the next stage of the federal regulatory process, the White House announced earlier this week. The rules seek to allow H-4 dependents of certain H-1B foreign nationals to seek work authorization and to extend the work authorization of E-3 and H-1B1 employees awaiting the approval of a timely-filed extension petition. 

The draft H-4 rule is expected to propose eligibility for employment authorization for the dependent spouses of H-1B nonimmigrants who are beneficiaries of extensions past their six-year time limit. Post-6th year extensions are available in certain circumstances to H-1B employees with long-pending employment-based permanent residence sponsorship cases. Under current law, H-4 foreign nationals are not eligible to apply for employment authorization pursuant to their nonimmigrant status. 

A separate rule is expected to extend employment authorization for 240 days beyond the period specified on an E-3 or H-1B1 nonimmigrant’s Form I-94 arrival record, as long as the foreign national is the beneficiary of a timely application to extend status filed by the same employer. Under current rules, this 240-day extension is available to qualifying H-1B, L-1 and certain other nonimmigrants, but not to E-3s or H-1B1s. 

Both proposals have been pending at the Office of Management and Budget (OMB) for several months. Once they initially clear OMB, they will be published as Notices of Proposed Rulemaking with a public comment period of at least 30 days and additional time for DHS to consider comments. The rules will not be implemented until after they receive final approval from OMB -- a process that could take several months or more for each rule. 

The exact contents of the two proposed rules will remain confidential until they are published in the Federal Register. Abstracts of the H-4 and 240-day extension of employment authorization proposed rules are available at the OMB website. 

The proposals are part of the Obama Administration’s Startup America Initiative, which was begun in 2011 and includes plans to implement administrative reforms at the Department of Homeland Security to attract and retain highly skilled foreign nationals. 

What This Means for Employers and Foreign Nationals 

If implemented, the rules would give some – but by no means all – spouses of H-1B employees the opportunity to work in the United States and would help E-3 and H-1B1 employees avoid work interruption when an application for an extension of stay is pending past their initial period of stay in the United States. 

DHS Plans Changes for H-4 Spouses

SHRM, 07/22/2013

The U.S. Department of Homeland Security’s spring 2013 regulatory agenda, released July 3, 2013, contains 52 items from the department’s immigration-related agencies, including proposed rules clarifying Form I-9 violations, providing work authorization to H-4 dependent spouses of H-1B visa holders, renewing the H-1C nurse visa and amending regulations governing the calculation of prevailing wages under the H-2B guest worker program.

Final Rules

A few rules that U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) will be implementing in the coming months are relevant to HR professionals. These include:

·         By October 2013, CBP will set the eligibility requirements and the application procedures and fees for the U.S. Asia-Pacific Economic Cooperation Business Travel Card Program. The program will enable eligible travelers to use fast-track immigration lanes in cooperating Asia-Pacific nations.

·         The extension of U.S. immigration law to the Commonwealth of the Northern Mariana Islands by December 2013.

·         A July 2014 final rule implementing the Legal Immigration Family Equity Act, which will allow the spouses and children of lawful permanent residents to live and work in the United States while waiting for a green card.

·         The finalization of interim regulations, by July 2014, precluding employers from filing duplicate petitions on behalf of the same foreign temporary worker subject to the annual H-1B numerical cap.

·         A final rule, planned for July 2014, implementing the Nursing Relief for Disadvantaged Areas Act, which created the H-1C nonimmigrant nurse visa in 1999 in response to the shortage of qualified nurses in many regions of the United States. To qualify for the H-1C visa, 500 of which are granted annually, a nurse must be licensed or have obtained a nursing degree in the U.S. and must pass the NCLEX-RN exam. Nurses with an H-1C visa may work in the United States for up to three years. USCIS stopped accepting new H-1C petitions after Dec. 21, 2009, when Congress failed to reauthorize the program.

Proposed Rules

USCIS proposes to extend employment authorization to certain H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent-resident status through employment. “Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high-demand skills to remain in the country and help spur the innovation and growth of U.S. companies,” USCIS said.

A Notice of Proposed Rulemaking is scheduled for October 2013 proposing to amend regulations that clarify certain Form I-9 paperwork failures and violations. According to the agenda, this proposed rule would define a substantive violation and a technical or procedural failure and delineate the circumstances in which an employer may be subject to penalties or not, due to a good-faith attempt to comply when completing the form.

Another rule planned for October 2013 would allow students on F-1 visas with degrees in science, technology, engineering or mathematics to take advantage of a 17-month optional practical training extension to gain experience in those fields.

And USCIS proposes to amend its regulations affecting high-skilled workers from Chile and Singapore (H-1B1), Australia (E-3), the Commonwealth of the Northern Mariana Islands (CW-1), and outstanding professors and researchers (EB-1) by November 2013.

The rule would reconcile the regulations for these classifications with existing regulations for other similarly situated classifications “by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications,” according to DHS.

Proposal to Allow H-4 Nonimmigrants to Work

From Fragomen.com, 12/14/2012

Regulation to Grant Work Authorization to Spouses of Certain H-1Bs Submitted Under Review

A proposed USCIS rule that could allow certain H-4 nonimmigrants to apply for work authorization is now under consideration at the Office of Management and Budget (OMB). Though the contents of the rule are confidential until published in the Federal Register, the regulation is expected to allow H-4 nonimmigrants whose H-1B spouses have started the employment-based permanent residence process to apply for work authorization, provided that the principal spouse has been in the United States as an H-1B for a minimum period of time. The rule is at the proposal stage only, and the OMB approval process may take several months or more. 

The proposed change may mean that H-4s could become eligible for work authorization after a labor certification or immigrant worker petition has been filed on behalf of the H-1B spouse. Currently, an H-4 spouse can apply for work authorization only if he or she is the beneficiary of a pending application for adjustment of status – the last stage of the permanent residence process.

Any updates on this proposal will be posted on The Global Buzz.