USCIS to Reopen H-2B Cap for the Second Half of Fiscal Year 2015

From USCIS: On June 5, 2015, USCIS will reopen the congressionally mandated fiscal year (FY) 2015 cap and will accept Form I-129, Petition for a Nonimmigrant Worker, requesting new H-2B workers with an employment start date between April 1 and September 30, 2015.

Why USCIS is Reopening the 2^nd half FY 2015 Cap for H-2B Petitions
USCIS’s role in managing the H-2B cap involves ensuring that enough Form I-129 H-2B petitions with a sufficient number of beneficiaries have been approved to fully subscribe the H-2B cap each year. It can be difficult to estimate in advance how many beneficiaries of an H-2B petition approved by USCIS will actually seek H-2B status or eventually be issued an H-2B visa by the Department of State (DOS). USCIS strives to reasonably estimate the number of petitions the agency may approve before the annual cap will be reached.

On April 2, 2015, USCIS announced it accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000 H-2B visas. USCIS considers numerous factors when determining how many petitions and beneficiaries to accept to fully utilize the H-2B cap. From June 3, 2014 through March 26, 2015, USCIS accepted about 3,900 petitions (consisting of about 77,000 beneficiaries) towards the H-2B FY15 cap.  USCIS believed this was sufficient to fully utilize the FY15 cap.

State Department Changes Reciprocity

The following chart shows the changes that have been made to the Country Reciprocity Tables since last publication.

Also, additional items may have been added to our homepage reflecting the various clearances that are required for some nationality groups, certain Presidential Proclamations affecting visa issuance, and the "Temporary Reciprocity Schedule" that is used for newly-independent countries, or when deemed necessary.

FAQs: Employment Authorization for Certain H-4 Dependent Spouses - Part 2

This is part 2 of 2:

Applying for Employment Authorization

1. Can I file the following applications/petitions concurrently? 
   1. An H-1B extension of stay petition, an H-4 extension of stay application, and an application for employment authorization?

      Yes. You may file your Form I-765, Application for Employment Authorization together with your Form I-539, Application to Extend/Change Nonimmigrant Status and the Form I-129, Petition for Nonimmigrant Worker filed on behalf of your H-1B spouse. For extensions of nonimmigrant status, the Form I-129 for your H-1B spouse can be filed no more than six months before the date that the employer needs your spouse to work.

2. A new H-1B petition, a new H-4 change of status application, and an application for employment authorization?

      Yes, but this scenario is possible only if your H-1B spouse has an approved Form I-140 or is requesting an extension of stay under sections 106(a) and (b) of AC21. Your spouse’s employer can file Form I-129 for your H-1B spouse no more than six months before the date the employer needs your spouse to work.
      Please note that under this scenario, we cannot adjudicate your Form I-765 until we make a determination about both your H-1B spouse’s eligibility for H-1B status under sections 106(a) and (b) of AC21 and your eligibility for H-4 nonimmigrant status.
      In either of the above scenarios, USCIS will not begin the 90-day interim EAD clock until we make a decision on your spouse’s H-1B status and your H-4 status.

2. Will the Form I-765 be a paper-based application, or will it be an electronic application?

      If you are applying for employment authorization based on your H-4 nonimmigrant status, you must file a paper Form I-765 application. We will not accept electronic Form I-765 applications.

3. What evidence should I, as an H-4 nonimmigrant, submit to demonstrate my eligibility for employment authorization?

      When applying for employment authorization based on your H-4 nonimmigrant status, submit the following with your application to demonstrate eligibility:

• Evidence of your H-4 nonimmigrant status;
• Evidence of your qualifying spousal relationship with the H-1B principal nonimmigrant (such as a copy of your marriage certificate);
• Evidence of your spouse’s H-1B nonimmigrant status, such as:
  • A copy of Form I-797, Notice of Approval, for Form I-129 filed on your H-1B spouse’s behalf (if already approved and not being filed with your application for employment authorization);
  • A copy of your H-1B spouse’s Form I-94, Arrival-Departure Record;
  • The receipt number of the approved Form I-129 filed on behalf of your H-1B spouse (if already approved and not being filed with your application for employment authorization); and/or
  • A legible copy of the personal data pages of your H-1B spouse’s passport, the visas on which he or she last entered the United States, and the latest U.S. admission stamps in his or her passport.
  • If you are applying for employment authorization based on your spouse’s grant of H-1B status under AC21 §§ 106(a) and (b), include the following evidence:

• Evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his or her six-year limitation of stay as an H-1B nonimmigrant. Such evidence may include, but is not limited to:
  • A copy of a print out from the Department of Labor’s (DOL’s) website or other correspondence from DOL showing the status of  the Permanent Labor Certification Application filed on your H-1B spouse’s behalf; or
  • If DOL certified the Permanent Labor Certification, a copy of Form I-797, Notice of Receipt, for Form I-140 establishing that Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification Application; OR
• Evidence that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his or her six-year limitation of stay as an H-1B, and the Form I-140 remains pending. Such evidence may include, but is not limited to:
  • A copy of your H-1B spouse’s Form I-797 Receipt Notice for Form I-140; or
  • The receipt number of your H-1B spouse’s the pending Form I-140 filed on behalf of the H-1B spouse.
  • If you are applying for employment authorization based on your spouse being a beneficiary of an approved Form I-140, include evidence that the Form I-140 filed on your H-1B spouse’s behalf has been approved.  Such evidence may include, but is not limited to:
    • A copy of the Form I-797 Approval Notice for Form I-140; or
    • A copy of the Form I-797 Receipt Notice for Form I-140 along with an explanation about why the Form I-797 Approval Notice is unavailable.

FAQs: Employment Authorization for Certain H-4 Dependent Spouses - Part 1

From USCIS: USCIS recently hosted a teleconference about new regulatory changes, effective May 26, 2015, that extend employment authorization to certain H-4 dependent spouses of certain H-1B nonimmigrants who have already started the process of seeking employment-based lawful permanent resident status. Those eligible include H-4 dependent spouses of principal 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 in the United States under 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 workers seeking employment-based lawful permanent residence to work and remain in the United States beyond the six-year limit.

You can find these regulatory changes in sections 214.2(h)(9)(iv), 274a.12(c)(26), and 274a.13 of title 8 of the Code of Federal Regulations (8 CFR 214.2(h)(9)(iv), 8 CFR 274a.12(c)(26), and 8 CFR 274a.13).

Please note that you may not apply for employment authorization under these regulations until May 26, 2015. If granted employment authorization under these regulatory changes, H-4 dependent spouses will receive a Form I-766, Employment Authorization Document (EAD), as proof of that authorization.

We are posting these Frequently Asked Questions in response to this stakeholder teleconference.

Frequently Asked Questions

Determining If You May Apply for Employment Authorization

1. As an H-4 nonimmigrant, would my employment authorization be limited to just my H-1B spouse’s time under AC21? For example, if my H-1B spouse’s petition is approved for the remaining time left in the 6-year period of admission plus the one year under AC21 §§ 106(a) and (b), and my H-4 status is granted the same period of time, how long will my employment authorization be valid for?

      Your employment authorization expiration date generally will match your H-4 nonimmigrant status expiration date. USCIS may grant employment authorization for the maximum time allowed even if the AC21 §§ 106(a) and (b) portion of your H-1B spouse’s extension is only for part of the full validity period. Under this scenario, your H-1B spouse’s extension has been granted under AC21 §§ 106(a) and (b), so you would be eligible for employment authorization for as long as your H-4 status is valid.

Temporary Protected Status Extended for Somalia

From USCIS: Secretary of Homeland Security Jeh Johnson has extended Temporary Protected Status (TPS) for eligible nationals of Somalia (and eligible individuals without nationality who last habitually resided in Somalia) for an additional 18 months, effective Sept. 18, 2015, through March 17, 2017.

Current TPS Somalia beneficiaries seeking to extend their TPS must re-register during the 60-day re-registration period that runs from June 1, 2015, through July 31, 2015. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins. USCIS will not accept applications before June 1, 2015.

Revised Form I-907 Now Available

USCIS recently published the revised Form I-907, Request for Premium Processing Service with a 01/29/15, edition date.

You can download the revised form and details about who may file, and where to file, Form I-907 from the USCIS forms page.

August 2015 Visa Bulletin Predictions

For June 2015 Visa Bulletin, please click here: http://blog.mygcvisa.com/2015/06/july-2015-visa-bulletin.html

Please see August 2015 Visa Bulletin Predictions below (for both Family Based and Employment Based):

Quick Summary:

• EB1, EB4, EB 5: Current
• EB2 Rest Of World: Current
  EB2 China: 3-5+ months
  EB2 India: 0-3 months. Please see article 1. Also see article 2.
• EB3 (ROW, Mexico): 0-2+ months. Please see article.
  EB3 China: 0-2+ months
  EB3 India: 1-2 weeks
  EB3 Philippines: U. Please see article.
• FB categories: 1 to 12 weeks Please see article.
• F2A: 3-6 weeks. Please see article.

Family Based:

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	22OCT07	22OCT07	22OCT07	22NOV94	01APR00
F2A	08DEC13	08DEC13	08DEC13	15OCT13	08DEC13
F2B	22NOV08	22NOV08	22NOV08	22APR95	01JUN04
F3	01APR04	01APR04	01APR04	01MAY94	01SEP93
F4	22NOV02	22NOV02	22NOV02	08MAR97	08JAN92

Employment Based:

July 2015 Visa Bulletin Analysis

For July 2015 Visa Bulletin, please click here: http://blog.mygcvisa.com/2015/06/july-2015-visa-bulletin.html

Please see below analysis of July 2015 Visa Bulletin:

EB1: All EB1 categories are current and should continue to remain current for fiscal year. Demand continues to be around 1650 every month (per the latest pending inventory).

EB2 ROW: This category continues to remain current. Per the latest report, demand in EB2ROW has increased significantly. However, since it can get spillover from EB4/EB5 and EB1 categories, this category is expected to remain current for FY 2015.

EB2 China: EB2 China moved forward by 4 months in this visa bulletin after moving 12 months in the last visa bulletin. It is likely to continue to move forward around at a fast pace in the next few months.

EB2 India: As mentioned in earlier blog post, demand in EB2 ROW has increased significantly. This directly impacts the amount of spillover visa available to EB2 India category. Due to increase demand in EB2 ROW, the total supply has decreased significantly in this category. Because of this, this category did not move forward in this visa bulletin;

In previous visa bulletin, it had moved forward by 5.5  months in this visa bulletin. In addition, there are applicants in EB2 who have not yet filed their application as well as applicants who will be porting from EB3 India to EB2 India.

July 2015 Visa Bulletin

For June 2015 Visa Bulletin, please click here: http://blog.mygcvisa.com/2015/05/june-2015-visa-bulletin.html

For July 2015 Visa Bulletin Analysis, please click here: http://blog.mygcvisa.com/2015/06/july-2015-visa-bulletin-analysis.html

July 2015 Visa Bulletin has been released (valid from July 1 to July 31 only). Please see below for more details.

Family Based:

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F1	01OCT07	01OCT07	01OCT07	15NOV94	15MAR00
F2A	08NOV13	08NOV13	08NOV13	15SEP13	08NOV13
F2B	15OCT08	15OCT08	15OCT08	08APR95	15MAY04
F3	15MAR04	15MAR04	15MAR04	22APR94	22AUG93
F4	22OCT02	22OCT02	22OCT02	01MAR97	08DEC91

Employment Based:

USCIS Temporarily Suspends Premium Processing for Extension of Stay H-1B Petitions

From USCIS: Starting May 26, 2015, USCIS will temporarily suspend premium processing for all H-1B extension of stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.

USCIS will continue to premium process H-1B extension of stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

USCIS will refund the premium processing fee if:

• A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
• USCIS did not act on the case within the 15-calendar-day period.

Premium Processing Remains Available for Certain H-1B Petitions

Premium processing remains available for:

• Form I-129 H-1B petitions subject to the H-1B cap and cap exempt petitions, as long as the petition is requesting:
  • A change of nonimmigrant status, or
  • Consular notification;
• Form I-129 H-1B petitions filed on behalf of individuals who already have H-1B nonimmigrant status, as long as the petition is requesting:
  • Consular notification, or
  • An amendment of a previously approved petition that does not include a request for an extension of stay; 

Why We Are Suspending Premium Processing

Employment Authorization for Certain H-4 Dependent Spouses Final Rule in Effect

From USCIS: 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 on May 26, 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.