Update on H-4 EAD’s

UnknownIt appears that USCIS is preparing to release a new rule by June, 2018 to remove the provision that allows certain H-4 spouses of H-1B visa holders to apply for work authorization.  If you have been following this issue, you know that the new administration has been looking at revoking these rules since it came into power.  It appears now that they are getting ready to act.  According to the administration, allowing such people work authorization is taking away potential jobs from US Citizens.  In further of this view, USCIS just released a report on the H-4 EAD process, including statistics on the number of cases, etc.  According to this report, there are over 104,000 people taking advantage of this law.

While we cannot be certain that the new rule will actually be published (or when it will be published) until it is actually published, it appears that it is now in sight, and will be implemented by the end of this year.  If you are currently using such an EAD, it would be beneficial to discuss other options with your attorney.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Final Rule Published by USCIS – Clarifies H-1B Cap Exemptions, Grace Periods for Non-Immigrant Visas, Retention of Priority Dates, and More

USCIS has just issued its final rule to  amend and add to its regulations regarding highly skilled worker.  These are the same changes I discussed about 1 year ago when USCIS issued a draft rule on these issues.  They have now been adopted.  Below is a summary of the provisions of this new rule.  Please note the effective date of the new rules is January 17, 2017.

I have divided the summary into two parts: those provisions that I feel make major changes to current law and those provisions that, while they do make changes, the changes are not as major.

First, lets look at the major revisions, the ones that will make major changes to current practices:

H-1B Cap Exemptions: USCIS clarified and codified its definition for two cap-exemptions. First, it defined who qualifies for a cap-exemption when they are working “at” a cap exempt location even though the employer for who they work is not cap-exempt. The new regulation states that the H-1B is cap exempt if the employee is performing a majority of their duties at the cap-exempt location and such job duties directly and predominately further an essential purpose, mission, objectives or functions of the cap-exempt organization.

Second, USCIS clarified its definition of “related or affiliated nonprofit entity” plus added one additional ground (currently only institutions that are connected or affiliated with an institute of higher education through shared ownership, that are operated by an institute of higher education, or that are attached to an institute of higher education as a member, branch, cooperative or subsidiary). The new definition also includes entities that have entered into a formal written affiliation agreements with institutes of higher education. The agreement must establish an active working relationship with the institution of higher education for the purposes of research or education, and it must establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education.

Revocation of Approved I-140s: USCIS amended its regulations so that I-140 applications that have been approved for 180 days or more will no longer be subject to automatic revocation because the employer requests it, or because the employer goes out of business. Those I-140s will remain valid for priority date retention and for extending H-1Bs past the six year maximum. However, unless the I-485 was filed and remained pending for at least 180 days before the withdrawal request or the employer went out of business, the I-140 cannot be used to file an I-485 or have it approved as the underlying offer of employment is no longer valid. If the I-485 had already been filed and remained pending for 180 days prior to the withdrawal request or the company going out of business, the applicant can still use the I-140 for 204(j) portability purposes (showing an offer of employment that is in the same or similar category). If that is not possible, a new I-140 would have to be filed in order to obtain an adjustment of status.

Retention of Priority Dates: As stated above, USCIS changed its regulations relating to retaining the priority date of an I-140. For those applications that require a labor certification, the filing date of the labor certification (or the I-140 in the case of Schedule A case) is the priority date for those I-140s. USCIS would clarify that the priority date for all other I-140s is the date it is properly filed with USCIS. Furthermore, USCIS would clarify that the priority date could be retained on any I-140 except if the I-140 is denied (or otherwise not approved), or if the approval is revoked based upon fraud/misrepresentation. If the employer subsequently withdraws the application or if the employer goes out of business, the priority date will be retained. This is true regardless of how long ago the I-140 was approved (i.e. it applies if it was approved yesterday or 2 years ago). In other words, the 180 day rule above does NOT apply to priority date retention.

Non-Immigrant Grace Periods: USCIS already has in place a provision that allows for a person entering the US on an H-1B to come up to 10 days before the start date, and to get an additional 10 days after the expiration of their H-1B (it is important to remember that currently, these extra 10 day periods MUST be included on the I-94 when you enter, they are not automatic). This will be extended to L-1, E-1, E-2, E-3 and TN visa statuses as well. In addition, these statuses would also receive a one-time, up to 60 day grace period if the employment is terminated prior to the end date on the I-94. The actual grace period time would be the SHORTER of 60 days, or the amount of time left until the expiration of the current I-94. During this period the person would still be considered in status and could file a new H-1B, L, E or TN applications (as listed above) or an application to change status. The above grace periods are also extended to dependent family members.

Eligibility for EAD in Compelling Circumstances: USCIS amended its regulations to allow EAD issuance to certain non-immigrants (those who have an approved I-140 and are in the US in E-3, H-1B, H-1B1, O-1 or L-1 status) if there exists compelling circumstances. The EAD would be valid for 1 year, and could be renewed as long as the compelling circumstances remained, and the priority date is within 1 year of the current cut-off date. In addition, if the person has a priority date that has already passed (so there is an immigrant visa available) and is more than 1 year beyond the posted date, they would be ineligible for either an initial or renewed EAD. In terms of defining compelling circumstances, USCIS will not do so. They do give certain examples, however. The four examples give are: Serious illness or disability that significantly changes employment circumstances (has to move to a new area for treatment, etc.), employer retaliation, other material harm to worker (such as on an H-1B in a industry specific job, company goes out of business, industry does not exist in home country, so lack of job would cause hardship), or Significant Disruption to Employer.

H-1B licensing Requirements: USCIS amended the regulation to reflect that, those applying for an H-1B in an occupation that requires licensing will be able to get the H-1B approved (for up to 1 year) prior to receiving the license if they can show that they have the application pending, or the application has been denied because they do not have a social security number or employment authorization and that the ONLY reason they cannot get the license is because they cannot get a social security number and/or they do not have employment authorization. USCIS will also allow approval in cases where the applicant does not have a license if the state in which they are practicing allows such persons to work under the supervision of a licensed practitioner. However, USCIS will review these cases to ensure that the duties will still be specialty in nature.

EAD Processing: USCIS is making two changes here. First, they will allow automatic extension of EADs (up to 180 days) and work authorization incident to status in cases where the applicant is seeking renewal of their EAD, files the application prior to the expiration of the old EAD, files the application in the same category in which it was initially granted AND either they continue to be employment authorized incident to status beyond the expiration period or they are applying for renewal in a category that does not first require adjudication of an underlying application. In addition, for I-9 purposes, they would amend the regulations to show that an expired EAD and an I-797 receipt notice would be sufficient to show employment eligibility. USCIS states that this would apply to those seeking to renew their EAD based upon: refugee or asylum status; a grant TPS; a pending I-485, as well as additional categories. It specifically does NOT apply to H-4s applying for work authorization – as their grant depends upon the maintenance of H-1B status of the underlying H-1B Principal. The second proposal would eliminate the 90 day processing period for EADs now required in the regulations for I-485 applicants.

Next are the provisions that, while important, do not represent as much of a change to existing policy.

3 and 1 year extensions of H-1B:  First, USCIS codified a couple of long standing USCIS policies in relation to AC21 and the granting of additional H-1B time past the six year maximum. For the three year renewals (allowed to those with an approved I-140 who are unable to file an I-485 based upon visa backlogs) USCIS is codifying that the three year extension can be renewed in three year increments for as long as the visa backlog exists. They are also codifying that the extension is available to those both in the US and outside the US, and to those currently in H-1B status and those not in H-1B status but who previously held H-1B status.

They are also codifying that any employer (not just the one who filed the I-140) can request the extension and that the extension is ONLY available to the principle beneficiary of the I-140, not dependents.  For the 1 year renewals, available to those whose green card process has been ongoing for 1 year or more, they are codifying similar provisions (available to those currently in the US and those outside the US and those in and not in H-1B status at the time the renewal is filed and it is only available to principle beneficiary).  In addition, they would codify that the denial or revocation of an underlying petition is not considered a final action (thus stopping the ability to get the 1 year renewals) until the time for appeal has elapsed, or, if an appeal is filed, the appeal is finalized – but an expired PERM would not be grounds to get an extension.

Lastly, a beneficiary must seek to get their permanent residence within 1 year of the visa becoming available or the extension is not longer available to them.

Job Portability:  USCIS codified that, once the I-140 is approved and the I-485 has been pending for at least six months, the adjustment of status can be approved if the underlying employer continues their sponsorship OR if you provide a new letter of employment from a new employer (or through self-employment) in a same or similar occupation.

In addition they are extending this to cases where the old employer has gone out of business.  USCIS will also define “same” and “similar” in a manner consistent with their latest memo on this issue.

H-1B Portability:  USCIS codified that those in H-1B status can begin working for a new employer upon the filing of the new H-1B application, that such ability is ONLY available to those in the US in H-1B status, and that you can file subsequent H-1B portability applications and begin working for those employers prior to approval of  the other underlying H-1B application.

Counting H-1B time:  USCIS codified the ability to recapture time outside the US. Anytime spent outside the US, regardless of the reason or the amount of time, can be recaptured at the end of the six year H-1B period. The burden of proof is on the applicant to show that they were out of the US during that period (passport stamps, etc.).

Whistleblower Protections: USCIS instituted certain protections for whistleblowers (those who alert the government to certain to illegal activities of their employers).


Please do let me know if you have any specific questions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Publishes Final Rule on Fee Increase

It is official now:  As of December 23, 2016 USCIS applications fees will be rising an average of about 21%.  For those interested, all the new fees are listed on the USCIS web page here. In terms of the most common applications, I am listing the old fee and new fees below:

Petition Type Old Fee NEW Fee
I-90, Application to Replace Permanent Resident Card $365 $455
I-129, Petition for a Nonimmigrant Worker $325 $460
I-129F, Petition for Alien Fiancé(e) $340 $535
I-130, Petition for an Alien Relative $420 $535
I-131, Application for Travel Document $360 $575
I-485 (adult), Application to Adjust Status (not including $85 biometric fee) $985 $1140
I-485 (under 14), Application to Adjust Status $635 $750
I-526, Immigrant Petition by Alien Entrepreneur $1500 $3675
I-751, Petition to Remove Conditions on Residence $505 $595
I-765, Application for Employment Authorization $380 $410
N-400, Application for Naturalization (not including $85 biometric fee) $595 $640
N-600, Application for Certificate of Citizenship (biological child/adopted child) $1170 $600/550

As you can see, the amount of the increases for most applications is not that great, however, it does vary from application to application.  The I-129 fee went up by 41% while the I-765 fee went up by under 8%.

However, it should be noted that the fee charged for premium processing was not raised during this round of fee increases.  Very surprising given that it would be an easy target, and would bring in significant revenue considering the lengthening timelines for adjudication.  USCIS may be assuming that timelines will decrease because of the extra money from other fees, so they kept the premium fee reasonable so that they would still get sufficient income from that source as opposed to pricing it out of reach of most people.

Please note again that the fees do not go into effect until December 23, 2016.  Any application sent that will be received by USCIS ON OR AFTER THAT DATE should contain the new fees.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Proposes Increases to Filing Fees

Unknown.jpegUSCIS has proposed a new fee structure – raising certain fees, keeping certain fees at their current level, and even lowering some fees.  As part of its bi-annual review, USCIS determined that what it was receiving in user fees was insufficient to allow it to continue its current operations (USCIS receives very little from the general budget (and what it does get is for special projects) and is almost entirely funded by user fees).

The proposed increases that we feel are of importance are as follows:




I-90 – Replace PR Card



I-129 – Nonimmigrant Worker



I-130 – Relative Petition



I-131 – Re-entry Permit



I-140 – Employment based Green Card Application



I-290B – Appeal



I-485 – AOS



I-539 – Extend/Change Status



I-751 – Remove Conditions



I-765 – Work Authorization



N-400 –  Naturalization



N-600 – Cert. Of Citizenship



It should be noted that the above do not include the biometrics fee of $85 (which will remain the same) where needed.  In addition to the above, the USCIS Immigration Fee (paid when you enter the US on an Immigration Visa) is being raised from $165 to $220.

USCIS does do its best to keep its fees down on most of the important applications.  The application fees that were raised the most are those related to the Alien Entrepreneur Visa.  The I-526, Application for Alien Entrepreneur went from $1500 to $3675 and the I924 Application for Regional Center Designation went from $6230 to $17,795.  There is a sixty day comment period after which USCIS will publish the final rule with a date for implementation of the new fees.  We will, of course, update you when that happens.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you. 


Expediting Your Immigration Case

Unknown.jpegMany clients want to know about getting their case expedited for various reasons.  This is especially true for those filing the I-485 application, who are counting on getting the EAD card quickly so that they can work.  While it is not impossible to get a case expedited, it can be difficult.  According to USCIS, there are 7 reasons why they will expedite a case:

  • Severe financial loss to company or individual
  • Extreme emergent situation
  • Humanitarian situation
  • Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
  • Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
  • USCIS error
  • Compelling interest of USCIS

Some examples of the above that USCIS gives are:

  • For extreme emergent situation: If the applicant is gravely ill
  • For Humanitarian reasons:  outbreak of war in your home country
  • Nonprofit:  a nonprofit that broadcasts in regional areas to promote democracy

These, most certainly, are not the only reasons USCIS will expedite cases.  For example, while the fact that the applicant is seriously ill is certainly an emergent situation, so is the fact that the applicant’s relative, and the applicant needs travel permission to visit their relative before they pass away.  However, it is important to note that this is a discretionary decision made by USCIS, so even if you feel your case fits in one of the above areas, USCIS can still deny the request for almost any reason.

It is also important to keep in mind that, even when USCIS does agree to expedite the request you may not actually receive the benefit you are looking for any faster than if you had just wanted for the normal approval.  USCIS can take 30 days or more to make the decision and get the case adjudicated even with an expedite.  The last thing to keep in mind is that if Premium Processing is available for the application, USCIS will not consider other expedite requests (except for non-profit organizations).

Before filing an expedite it is always a good idea to discuss the matter with your attorney to ensure that the best possible case is filed and all relevant procedures are followed.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

STEM OPT Transition Information

Unknown.jpegFor those who are wondering about the new STEM rules, and how the old rules will be stopped and the new rules will be implemented, keep reading.

If My Application Was Filed On Or Before May 9, 2016, Under Which Rules Will It Be Adjudicated?

USCIS will transition into the new rules as seamlessly as possible.  First, all current and pending OPT requests will continue to be processed as 17 month extensions up until May 10, 2016 (so through May 9, 2016).  Any 17 month extensions already granted, or granted from the date the new rule was published through May 9, 2016 will remain valid as of May 10, 2016 and beyond for their full term (i.e. until the date listed on the EAD).  These 17 month EADs will not be affected by the new rules in any way.

However, any application for a 17 month extension filed before May 9, 2016 that remains pending as of May 10, 2016 (and, of course, any application filed on or after May 10, 2016) will fall under the new rules.  In other words, filing the application  before May 10, 2016 does not guarantee your application will fall outside the new rules.  Any application pending on May 10, 2016 will be converted to a request for a 24 month extension, and, in due course, a Request for Evidence will be issued for the new I-983 training plan and other additional documentation needed to process a request for the 24 month extension

What If I File My Opt Request And Ask For 24 Months, But I File Prior To May 10, 2016?

If you file a request under the new rules, but send in the filing early, USCIS will automatically convert your request to a 17 month extension request.  Of course, per the above, if that application remains pending on May 10, 2016, it will be converted back into a 24 month request.

If I Have A 17 Month Opt Card Can I File An Extension To Get The Extra 7 Months?

Yes.  Those who received 17 months of OPT, if you qualify for the 24 months under the new rules, can file a request to extend their OPT for the extra 7 months.  You will need to file the extension request with all the required documents for a normal 24 months OPT request, including the training plan, etc.  This is not an automatic extension, you must file for the extension and be approved under the new rules.  This is important to remember especially in context of deciding whether to withdraw a current OPT request so that you fall under the new  rules.  

There are many inherent dangers to withdrawing an OPT request, especially in terms of the strict timelines in which to file the OPT request (which are not reset if you withdraw your initial request) and you should discuss this with your school and immigration attorney before making a decision.  In most cases, just continuing on with the current application and filing a request down the road may be the safest, and only, option.


USCIS, EAD Cards and Adjustment Interviews

UnknownWhen you go in to USCIS to be interviewed for your I-485 application, it has been the practice for USCIS to take your EAD card at that time.  Why did they develop this policy?  Really who knows.  It makes no sense as you are not yet approved and need the EAD to travel and work.  Despite this, USCIS has routinely done these (they say only in cases that they are going to approved, but my experience is that they do this in every case).

Recently the American Immigration Lawyer’s Association (the Bar Association for Immigration Lawyers) met with USCIS on this issue and, eventually, USCIS changed their position.  They have informed offices that they should return the EAD card to applicants at the end of the meeting.  If the office does not, you can ask them to return it based upon the Central Office policy.  We are glad that USCIS agreed to this as keeping the EAD card, especially when there are cases where the office may expect to have the case approved quickly, but is unable to get it approved quickly (perhaps the officer leaves and the case is not re-assigned for a couple of weeks or months, perhaps something else comes up).  Leaving a person without the EAD leaves them without proof of ability to work or travel, and with less proof of status in this country.

In addition, USCIS informed AILA that an “ADIT stamp may be provided before the arrival of the Permanent Resident Card at the discretion of the field office,” and that “a new LPR will be recognized as employment authorized, based on LPR status, in the e-verify and SAVE systems, should an inquiry be made between the date that a Form I-485 is approved and when the Permanent Resident Card is received.”

These are also welcome changes to current policy.  If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.