H-4 & EAD

On May 26 of this year, new regulation allowing certain H-4 visa holders to obtain an employment authorization document (EAD) came into effect. Some of the key points to keep in mind are the following:

  • H-4 EADs are not limited by deadlines or number. Any number of filings can be made at any time. As long as you are eligible, you may renew your benefits.
  • In order to file for the H-4 EAD, you must hold H-4 status, and you must be in the United States. H-4 status is only held while a person is in the United States.
  • If you have applied for a change to H-4 status, but do not yet hold that status, avoid traveling outside the U.S. If you travel abroad while a change of status is pending, your EAD will be denied. If you must travel outside the U.S., you can refile an EAD application after returning to the U.S.
  • The H-4 EAD grants unrestricted employment authorization to the holder. You can work full-time, part-time, or on-and-off for any employer. You can also be self-employed, start your own business, and hire other individuals (as long as they are authorized to work in the U.S.).
  • An EAD only grants employment authorization NOT travel authorization. Unless you are a Canadian citizen, you need an H-4 visa stamp issued by a U.S. consulate abroad in order to come back to the U.S. with H-4 status.
  • You may file an H-4 EAD application at the same time as an application to change or extend H-4 status. You may also file the primary applicant’s H-1B extension at the same time as applications to change or extend H-4 status, as well as EAD applications.
  • If you are awaiting decision on a previously filed application for change or extension of status (I-539 form), it is better to wait for the decision on the I-539 form before filing the EAD application. This is because the USCIS cannot guarantee that they will be able to match the EAD application with the pending I-539 form.

To learn whether you qualify for a H-4 EAD or have questions about the H-4 Change of Status and H-4 EAD contact our office at 312-857-5402 for prompt assistance.

DAPA Updates & Notario Fraud

In USCIS’s January 26, 2015 DAPA update one of the main issues discussed was to be wary of notario fraud (“notarios” or “immigration consultations” are people who do not have the authority to practice law).  Noatarios misguide immigrants to take advantage of their situations, promising them unrealistic benefits under DAPA (e.g. “we will make sure you get a green card) and charging vulnerable immigrants fees for their baseless advise .

The most up to date DAPA information from USCIS is as follows:

1) At this time, USCIS is not accepting DAPA applications (do not believe anyone who says otherwise)

2) A new form I-821P will be used to apply for DAPA (the form has not been released yet)

3) USCIS Director has said that paying back taxes will not disqualify immigrants’ eligibility under DAPA.  Please make sure not to fall for tax scheme by notaries and/or tax advisors who try to persuade immigrants that not paying taxes will disqualify their eligibility under DAPA.  Taxes will need to be paid prospectively, meaning that DAPA recipients will be obligated to pay taxes once they receive their Employment Authorization Card under DAPA.

4) USCIS will release FAQs very close to registration window planned for May 2015 that will provide clarity on the following:

  • The scope of parent-child relationship
  • The lack of permanency associated with the DAPA program
  • Whether advance parole (permission to travel in/out of the US) will be part of the program
  • Whether the use of false or fraudulent social security number in I-9 forms will impact eligibility
  • Clarity around expedited removal orders
  • Challenges of documentary evidence

As the DAPA program unfolds, we will proactively keep our readers informed.  Please note that this communication does not constitute or form an attorney-client relationship. Our firm will begin taking clients when USCIS opens the DAPA program.

We look forward to helping our community of immigrants take advantage of the DAPA program.  To learn more, please contact our firm.

President Obama’s Immigration Plan

Opinion Piece: President Obama’s Immigration Plan by Chey Vargas

“We are and always will be a nation of immigrants.” –President Barack Obama

The United States of America is founded from immigrants.  Just like our Founding Fathers, we all have ancestors and heritage that goes back to before America was even created or founded. So none of us can say that we are not immigrants or children of immigrants to this country.

Many immigrants today have come the United States of America for a better life, for their family, for work, to escape religious persecution and unrest in the respective countries, and most importantly, to be free and equal.  That is what our ancestors came here for, the American Dream.

On Thursday, November 20, President Obama expressed in his speech that he wants to implement three actions as part of his immigration plan:

  1. Build on Progress at the Border
  2. Make it easier and faster for high-skilled immigrants to stay in the United States
  3. Enforce resources on felons and deportations, not families: Deportations are up 80% and the President believes it is best to prioritize who should leave and who should stay.  Those who have committed felonies and major crimes, should be placed on higher priority to be deported than those who are here for their families and trying to make an honest living.

President Obama spoke at length about the new “Deferred Action for Parents” program that will allow undocumented parents of US citizens or Legal Permanent Residents to make amends in exchange for deferred action.

According to the President, it is not realistic to deport everyone.  Working, attending religious venues, having a family, owning your own home, is all part of the American way of life. Per President Obama’s plan, there are some stipulations that undocumented immigrants must follow in order to be granted the right and privilege to temporary live in the United States:

  • The undocumented immigrant must have US citizen or legal permanent resident children
  • The undocumented immigrant must have been in the United States for at least 5 years or more
  • The foreign national must be current in their payment of taxes, including back taxes
  • This program does not grant citizenship or legal permanent residency

This plan will give the US citizen and legal permanent resident children of undocumented immigrants a better future and provides that felons and certain other classes of undocumented immigrants with criminal backgrounds will be deported above families.

President Obama stressed in his speech that, “This country needs a common and higher purpose.”  Meaning that the United States should be a unified front and strive to create equality for all people who are trying to make an honest living no matter where they came from.  He used Astrid Silva as an example.  Astrid was brought to America at the age of 4.  She learned English by reading newspapers and watching the educational shows on PBS.  Her father worked in landscaping and her mother cleaned homes.  Because she had an illegal status (being the child of undocumented foreign nationals), her parents did not want her to apply to college when she was older.  Due to her status, when her grandmother died, she could not travel back to her home country for the funeral.  She is now working on earning her third college degree as a result of her parents bringing her to the United States to make a better life.

President Obama spoke to the human spirit when he stated “We were strangers once, too.”  If we all sit back and think about that statement, it is very true.  Early Americans came to this country as complete and total strangers.  The Native Americans were already here, and the immigrants who were coming to this country were confused, scared, and just wanted a better life in the land they heard so much about.  Again, it was about freedom and equality, being able to live their life in a way so as they were not persecuted for their beliefs and opinions.

Retrogression of EB-2 Visas for Indian Nationals

Charlie Oppenheim, Chief of Visa Reporting and Control Division for the Department of State, has issued his thoughts/predictions on EB-2 retrogression for Indian nationals and forward movement for preference categories.

Due to high upgrades from EB-3 to EB-2 category and high demand for EB-2 visas, the EB-2 category for Indian nationals will retrogress in November 2014 to February 15, 2005 priority date.  EB-2 India clients are urged to file their Adjustment of Status applications before the end of October 2014.

Unfortunately for EB-2 India clients, there is no forward movement predicted for the forseeable future. However, for family-based preference categories, there will be modest forward movement of possibly a few weeks to two months per month.

See November 2014 Visa Bulletin 

Overview of Adjustment of Status

For many non-immigrants, the process of becoming an immigrant or U.S. citizen is a very daunting but rewarding task.  There are several ways to become a Lawful Permanent Resident (LPR) or U.S. Citizen, but right now, let us address just one:  Adjustment of Status.

Adjustment of Status, or AOS as it is frequently known as, is when the USCIS (United States Customs and Immigrations Service) alters the non-immigrant status of a foreign national (intending immigrant or beneficiary) present in the U.S., to immigrant status. The purpose of this is to obtain permanent resident status in the U.S.  There are several different reasons a foreign national can apply for adjustment of status.  Some of those being marriage to a U.S. citizen (the most common) or employment-based reasons.

In order to be eligible for Adjustment of Status, the intending immigrant must be present in the U.S. on the day the application is filed with the USCIS.  The foreign national is not allowed to leave the U.S. while their application is pending without the proper travel permissions (a valid visa allowing travel, or advance parole which will be discussed later), otherwise, their application will be deemed ‘abandoned’, meaning they will not be able to file the application.  A foreign national can only apply for adjustment of status if they have maintained a valid status on their visa since they came to the U.S.   There are, however exceptions to this:  Immediate relatives of U.S. citizens (such as spouses and unmarried children under 21 years of age) can adjust their status with the foreign national as derivative beneficiaries.  This means that they do not have to file separate petitions or separate adjustments applications.   An exception to the derivative status rule is when the foreign national seeks to adjust their status via marriage to a U.S. citizen.  Then no derivative status for immediate relatives apply.   If the foreign national’s children are under the age of 18 at the time that the marriage to a U.S. citizen occurs they can be sponsored by the U.S. citizen but must have separate petitions.  Along with the above requirements, the foreign national also must be able to prove that they were lawfully admitted or paroled into the U.S. after inspection by an immigrations officer.

The benefits to adjustment of status cases are that the processing times are shorter and visas are immediately available to the foreign national in the cases of marriage or some employment-based cases.  Also employment authorization may be obtained while the application is pending and can be renewed if it’s pending too long.  The foreign national can also travel outside the U.S. while the application is pending via the advance parole document.

If the foreign national is seeing adjustment of status in the U.S., they must be admissible and not subject to removal (deportation).  Some of the grounds for inadmissibility include: communicable diseases, drugs, terrorist activity, fraudulent or willful misrepresentation of a fact to obtain a visa or immigration benefit, among others.  Waivers to these grounds of inadmissibility can be made available to the foreign national under certain circumstances.

Next, if the USCIS deems the adjustment of status application approved, if warranted, there will be an interview (almost always in marriage cases and some in employment-based).  Attorneys can be present at these interviews and the purpose of them is to make sure that the immigrations officer finds their case and documents as credible.

We at HBM Law Offices have filed dozens of successful Adjustment of Status petitions.  To learn more about this process or discuss your eligibility, call us to schedule a complimentary consultation with our office.

 

Welcome to the HBM Law team!

Chey Vargas serves as the immigration paralegal at HBM Law Offices, LLC in West Des Moines, Iowa.  She is a first generation immigrant and appreciates the opportunity to help fellow immigrants under the guidance of Attorney Himani Bhardwaj. 

She is a native of Iowa and holds an Associate degree in Legal Studies from Kaplan University and is pursuing her Bachelor’s Degree in Paralegal Studies from Liberty University.  She serves as a mentor for other students in the program. 

Chey is customer service focused, diligent, and provides indispensable legal support to the law firm.  In her spare time, she enjoys spending time with her three children and husband.  

Chey Vargas headshot

Make sure to check out her LinkedIn Profile

 

FY 2015 H-1B Petition Results and What to Expect

USCIS received 172,500 petitions for FY2015 and more than 20,000 petitions filed towards the Masters quota cap. As predicted, with an improving economy, the demand for foreign talent has also increased.

USCIS conducted a computer-generated “lottery” to randomly select cap-subject cases received between April 1, 2014 and April 7, 2014.  The first lottery they ran was for the advanced degree quota to select 20,000 petitions. Next, a lottery was conducted combining the remaining advance degree cap-subject petitions and the regular cap-subject petitions to select a total of 65,000 petitions.

If your petition is selected in the advance degree lottery and was filed with premium processing, USCIS will issue electronic receipts to the attorney/law firm on file and assign a case number to the petition.  Lottery results for regular cap-subject petitions will be notified via mail.  If your petition is not selected in the lottery, USCIS will return the H-1B petitions with the filing fees to the petitioning employer.

How soon you will learn whether your petition was selected in the lottery?

A majority of the lottery results are notified early on but some petitions (also selected under the lottery) are set aside as “stand by” by USCIS.  The stand by petitions replace petitions that are denied, withdrawn, or found ineligible.  What this means is that your attorney could receive a notification that your H-1B petition was selected several weeks after the lottery has been conducted.

USCIS will first adjudicate H-1B petitions that elected and paid for premium processing set to begin no later than April 28th.  There are two service centers that review H-1B petitions:  California Service Center and Vermont Service Center. It is very important to stay in touch with the HR department of the petitioning employer to get the latest information on your petition.

This information is for general overview and should not be construed as legal advice.  Contact attorney Himani Bhardwaj of HBM Law Offices, LLC about specifics of H-1B process.

 

USCIS Reaches FY 2015 H-1B Cap

Release Date: April 07, 2014

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing.

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;

• Change the terms of employment for current H-1B workers;

• Allow current H-1B workers to change employers; and

• Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.