Friday, May 16, 2014

EAD For H4 Visa Holders (Update)

Department of Homeland Security (DHS) 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.

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. 

12 comments:

  1. amazon,
    when do you think is this ruling will be final ruling and executor status?

    ReplyDelete
  2. amazon,
    when do you think is this ruling be final and executory status?

    ReplyDelete
  3. Hi Amazon, if this rule should be implemented, are those eligible spouses of H1bs whose jobs are within the STEM are the only qualified? To be specific, do you think spouses of special education teachers are qualified? And one thing more, how about H1bs with 7th year extension but without approved PERM because it was denied but visa was just extended just because it was appealed and pending? Your insights are very much appreciated, Thank you.

    ReplyDelete
    Replies
    1. I think the verbiage is pretty straight forward. Did u even bother to look into the ruling

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    2. Of course I did, for my first question, the teacher has an approved I-140 and his pd is almost current now, I just don't have an idea if it's considered within the STEM and it's not really clear it it's just for stem jobs. For the second question, I just missed one information, though there is a 7th year extension, LC and I-140 should have been approved, so even there was an extension of visa but no lc approval yet, it suggests that EAD won't be granted.I am gathering some informations here not just for one person but for some with different situations of cases, thank you though for your comment.

      Delete
  4. Regarding the current status of the proposed rule for H-4 spouse employment authorization. This was first submitted by the DHS to the White House Office of Management and Budget (OMB) in December 2012 -- yes, 17 months ago! Typically the OMB approves a proposed rule for publishing in the Federal Register in ~ 60 - 90 days. Now 17 months later, the OMB has finally published the proposed rule in the Federal Register for the 60 day comment period (albeit the rule has been revised to be more flexible than when initially submitted by the DHS). The next steps are the noted 60 day comment period, then the proposed rule goes back to the DHS for review of the comments and resubmitting to the OMB for approval as a final rule, and then with OMB approval it gets published in the Federal Register as a final rule and goes into effect. These steps will likely take another +/- 150 days, so it is still a few months before the rule could go into effect.

    Regarding the restrictions related to the H-1B visa, there is nothing in the proposed rule that is specific to STEM. Any H-4 spouse where the H-1B visa holder has an approved I-140 petition or has been granted an extension H-1B visa beyond the initial 6 years (based on meeting the applicable requirements) would be eligible for employment authorization.

    ReplyDelete
    Replies
    1. Very helpful information/ excellent comment.

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    2. You are talking about spouse of H-1B Visa holder which is H-4, How about the kids of H-1B holder which is also H-4 can get the employment authorization?

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    3. Unfortunately, the DHS proposed rule for H-4 spouse employment authorization is limited to only spouses (legally recognized as such by the USCIS) of H-1B visa holders who meet certain specified requirements and conditions. It specifically does not include employment authorization for other H-4 dependents, i.e. children of H-1B visa holders. This follows similar benefits for L-2 spouses of L-1A and L-1B visa holders.

      I do not know nor understand why H-4 children in high school and college / university cannot also be eligible for employment authorization.

      Since the proposed rule is in a 60 day comment period, it should be possible to submit a change to include employment authorization for all H-4 dependents of applicable H-1B visa holders as a comment for the DHS to review.

      Delete
  5. Dear sir,
    Iam EB-3, Indian with p.d.Oct.2006, any scope for availability of visa in 2014?
    Thanking you.

    ReplyDelete
    Replies
    1. Your comment is irrelevant to the article.

      Delete
  6. Dear sir
    Can u tell. H4 rule can be effect from September 1st onwards ? How long does it take to get eaf for h4 spouses ? Any guess ?

    ReplyDelete

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