FAQ’s on Employment-Based Provisions in Executive Action

Last night, President Obama addressed the nation on his plans for modernizing the employment-based immigration system through executive action. We have gathered the following information which is applicable to employment-based applicants:

1. Will H-4 visa holders be allowed to work?

Yes for some, but not right now. USCIS has been directed to publish the final rule implementing the availability of Employment Authorization for H-4 visa holders. Since this rule was already proposed several months ago, the effective date should be relatively soon. The I-765 form will need to be updated to create a new category for H-4 dependents. Guidance will need to be published by USCIS to confirm exactly who is eligible for the EAD and what documents must be submitted. We are estimating that this may become available within the next 2 months. Based on the proposed rule, spouses of H-1B holders beyond the six year limit or with approved I-140s should be eligible.

2. Will priority dates become current?

Possibly, but not right away. USCIS and Department of State have been directed to improve coordination to better ensure that all authorized immigrant visas (green cards) are issued each year. This may refer to the potential recapturing of green cards that went unused over the last 20 years. Estimates are that over 200,000 green cards could be made available, which would be enough to clear all employment-based I-485s that are currently pending with USCIS. This would then allow priority dates to be advanced significantly. In addition, USICS is to consider other policy changes, such as the counting of derivative family members towards the numerical limits for immigrant visas. If family members are no longer counted, priority dates will likely become current.

3. Can I file my I-485 now since my I-140 is approved?

Not right now, but soon. USCIS is to “carefully consider other regulatory or policy changes” for beneficiaries of approved employment-based immigrant visa petitions. This likely refers to the possibility that those with approved I-140s may be able to file the I-485 Adjustment of Status now, even if the priority date is not current. While the I-485 cannot be approved without a current priority date, this step will provide 2 specific benefits: 1. The ability to obtain an EAD and no longer rely on the underlying nonimmigrant visa; and 2. The ability to change jobs under AC-21. Because this may require changes in regulations, it could take two months for these changes to be implemented.

USCIS and other agencies are directed to implement these initiatives as soon as possible. Some may be done over the next few months, while others are expected to take longer. USCIS will need to produce detailed explanations, instructions, regulations, and forms. Importantly, note that USCIS is NOT accepting applications for any of these initiatives at this time. The initiatives do not include any deadlines at this time


Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is dedicated in its advocacy and community involvement efforts towards achieving effective comprehensive immigration policy reform. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.