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.

What Type of Questions Can an Employer Ask At A Job Interview?

For immigrants, it can sometimes be tough looking for a job, as there are employers who are simply not interested in hiring people on temporary visas.  For employer, it can be difficult to know what you can and cannot ask about someones immigration status without running afoul of discrimination laws.   Recently the Office of Special Council for Immigration Related Unfair Employment Practices (OSC), which is part of the Office of Civil Rights at the Department of Justice, was asked about several different types of questions that an employer might ask, and if those types of questions were allowable under the anti-discrimination laws.  Here are the exact employer questions that were posed:

 A. Do you now, or will you in the future, require sponsorship (e.g., H-lB visa status, etc.) to work legally for THE COMPANY in the United States?

B. If you will require sponsorship, do you currently hold Optical Practical Training (OPT)?

C. If you currently hold OPT, are you eligible for a 24-month extension of your OPT, based upon a degree from a qualifying US institution in Science, Technology, Engineering, or . Mathematics (STEM), as defined by Immigration & Customs Enforcement (and as outlined in the following government website: https://www.ice.gov/sites/default/files/ documents/Document/2016/ stem-list.pdf?

As can be seen, these were fairly specific questions aimed at either determining if the person would require sponsorship, and/or if they had their own source of employment authorization for a good period of time.  Here is the response from the OSC:

As you know, the statute prohibits denying protected individuals employment because of their real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination in hiring under the INA. Accordingly, an employer that asks all of its job applicants whether they will require sponsorship now or in the future and refuses to hire those who require sponsorship would likely not violate 8 U.S.C. 1324b. Similarly, an employer that asks questions designed to prefer certain classes of nonimmigrant visa holders (e.g., STEM OPT students) over other classes of nonimmigrant visa holders is unlikely to violate the INA’s prohibition against citizenship status discrimination.

So, interestingly, as long as you ask ALL job applicants these questions, there should be little danger of running afoul of the discrimination laws.  However, the OSC went on to say:

However, asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying due to a misunderstanding about their eligibility for the position. Therefore, we caution employers against asking detailed questions pertaining to status that may lead to such confusion.

The above should give some pause to employers who want to go beyond simple questions made to ALL applicants.  Even if you follow the above, that is no guarantee that you will not be referred to the OSC, as an applicant can still allege that they felt discriminated against, or that the questions made them feel as though they were not welcome to apply (for those in a protected class).    It is also important to remember that the above is ONLY in relation to discrimination based upon immigration status.

There are other forms of discrimination including national origin discrimination that does extend to those with work authorization cards.  Here is what the OSC says about this type of discrimination:

In addition, all work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Accordingly, individuals who believe that they were not hired based on national origin-for example, their country of origin, accent or appearance-may allege discrimination on this basis.

So  even though not hiring someone based upon their need for sponsorship would not violate one provision, it may violate this provision if the applicant can show that they were discriminated upon because of their national origin, accent or appearance.  This is something else to keep in mind, especially for the HR personal carrying out the interviews.

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.

STEM OPT: The Fight is Not Over Yet

UnknownWith the publishing of the new STEP OPT rule just last month, many thought that this could be the end of the lawsuit brought against USCIS over this issue.  The Court overseeing this case found that USCIS had violated procedures surrounding the rule making of that last OPT extension, which lead to USCIS redoing the rule making process and the new rules.

Unfortunately, the group that brought the lawsuit Washington Alliance of Technology Workers (Washtech), through their attorneys from the Immigration Reform Law Institute (ISLI), is still appealing the ruling of the lower Court which ruled that the ISLI only had jurisdiction to sue over the STEM OPT rule and not all OPT as well as the part of the ruling that agreed with USCIS that the definition of student could include those not in school any more at the time (without the benefit of such a definition USCIS could not implement any OPT rules).  Washtech and ISLI maintain that all OPT rules were developed to circumvent protecting for the US workforce required for such visas as the H-1B (payment of a prevailing wage, no lockouts or strikes, etc.).  They also maintain that OPT hurts US workers, especially recent US graduates.

Before discussing the impact of the continuation of the law suit, I would like to state that the allegations that OPT or other immigration programs hurt US workers or graduates is disproved by all research in this area.  All research shows that areas with higher level of immigrants who are working create more jobs, have a lower unemployment rate and a better economy that those with less immigrations.  (See this article for example).

If the appeals court agrees with Washtech it could call into question all OPT Rules and lead to USCIS having to stop issuing OPT documents unless and until the US Congress changes the statute. Considering the divided nature of the current congress, the chances of them getting together on this issue is very small, which means if the Court rules that the OPT laws are no longer valid, that ruling will not be changed by legislation anytime in the near future. This would hurt not just foreign graduates, but the US economy as well, as fewer students would come to the US and many fewer students would stay after their studies. As discussed above, this decrease in immigration would actually act to hurt our economy.

Hopefully the Appeals court will uphold the lower court ruling and the OPT rules will remain in place.  We will, of course, update you as news develops in this case.

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:

FORM NUMBER

PREVIOUS FEE

NEW FEE

I-90 – Replace PR Card

$365

$455

I-129 – Nonimmigrant Worker

$325

$460

I-130 – Relative Petition

$420

$535

I-131 – Re-entry Permit

$360

$575

I-140 – Employment based Green Card Application

$580

$700

I-290B – Appeal

$630

$675

I-485 – AOS

$985

$1140

I-539 – Extend/Change Status

$290

$370

I-751 – Remove Conditions

$505

$595

I-765 – Work Authorization

$380

$410

N-400 –  Naturalization

$595

$640

N-600 – Cert. Of Citizenship

$600

$1170

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.