Rahul Reddy, Attorney at Law
In the aftermath of this election, many immigrants are fearful that their status may be in jeopardy. Donald Trump’s stance on immigration was a big cornerstone of his campaign, and he continually reaffirmed his desire to end illegal immigration. Instead of inspiring fear in legal immigrants, this should offer some comfort as it is safe to say that his policy will focus on stopping illegal immigration, rather than removing or drastically changing the legal immigration avenues that currently exist. The H-4 EAD program, allowing spouses of H-1B beneficiaries work permits has been rumored to be in jeopardy, but this could not be further from the truth as it stands. It is unlikely that this regulation will be changed or removed in any way that will substantially affect those who hold the visa, or its availability to those who wish to enter the United States by obtaining one.
President Trump previously stated that he will roll back the executive orders known as DACA and DAPA which allow undocumented immigrants with clean criminal granting them work permits. He has since recanted this, stating that “. . . repealing DAPA and DACA are not action item[s]”. Immigrants in the United States on visas like the H-4 EAD should therefore not be affected. Primarily, the reason is that these immigrants are in the U.S. legally, and therefore not subject to the provisions outlined in DAPA and DACA. Additionally, unlike DAPA and DACA, the regulations giving rise to the H-4 EAD visa were promulgated by regulatory agencies, and are not based on an executive order.
Even if Donald Trump did repeal the executive orders dealing with illegal immigration, this will have no effect on visas available through regulations set by the Department of Homeland Security and the United States Citizenship and Immigration Service.
A transfer of power between administrations in the United States is always accompanied by some uncertainty as citizens, immigrants, and political pundits try to predict what the new President will do. The change of current administrations is no different. But that uncertainty does not have to include fear for those immigrants in this country on visas such as H-4 EAD who are doing their best to maintain legal status.
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 highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. 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.
The final regulations for the long-awaited “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program, Improvements Affecting High-Skilled Nonimmigrant Workers” have been released, and are in effect as of January 17, 2017. These regulations have sometimes been known as the “I-140 EAD rule,” due to its provision of work authorization for certain beneficiaries of approved I-140 immigrant petitions. However, as discussed in our office’s previous analysis of the proposed I-140 EAD (see http://rnlawgroup.com/news/509-i-140-ead-rule-big-bluff-by-the-administration), the EAD will only be available to I-140 beneficiaries in limited, “compelling” circumstances, and for a limited duration, making it of little practical use to the large majority of I-140 beneficiaries waiting to file for adjustment of status. Other portions of the rule, however, do impact large numbers of workers in various stages of the non-immigrant and immigrant visa process. Some of these provisions include: 60-day grace period for H-1B workers in event of employment termination.
Under the previous rule, H-1B workers are considered in status only as long as they are working for their approved H-1B petitioner. Termination of employment would render the H-1B beneficiary automatically out of status, leaving the applicant with limited time and options to seek new employment. Under the new rule, H-1B workers will be accorded a grace period of up to 60 days in the event of employment termination, only during the petition’s existing validity period. This means that if the H-1B petitioner terminates a worker before the end-date on the I-797 Approval Notice, the worker has 60 days from that date to file a change of status, extension of status, or change of employer petition, without being considered out of status. Please note the grace period does not apply if the validity date of the H-1B petition has already passed.
Extending H-1B status beyond the 6th year when an I-140 approval has been withdrawn
Under the previous rules, an H-1B worker’s ability to apply for 3-year extensions beyond the 6th year depended on an approved I-140 petition. If the I-140 petitioner chose to withdraw the approval, the H-1B worker’s would not be eligible to apply for an extension, unless a new I-140 was approved in time. Under the new rule, if the I-140 petition has been approved for at least 180 days, its subsequent withdrawal by the petitioner will not affect the beneficiary’s ability to apply for H-1B extensions beyond the 6-year limit. The priority date from the withdrawn I-140 petition can also be ported to a new I-140 petition.
Automatic extension of EADs up to 180 days
This applies to applicants with a pending I-485 Adjustment of Status application. Under the previous rules, applying for an EAD renewal could result in a gap in employment authorization, as the new EAD was required to continue working, and I-765 processing times have routinely extended beyond the proscribed 90-day timeframe. Under the new rule, applicants applying for an EAD renewal based on a pending I-485 application will receive an automatic 180-day extension of work authorization beyond the previous expiration date, if the renewal application has been pending more than 90 days. In addition, the window to file your I-765 application has been extended from 120 days to 180 days prior to the current EAD’s expiration date, also in an effort to reduce work authorization gaps due to USCIS’s increased processing times. Please note that the automatic 180-days EAD extension does not appear to apply to H-4 EAD or F-1 OPT applicants. I-485 Supplement J USCIS has added a form, called
Supplement J, to its I-485 adjustment of status application.
This form serves the purpose of providing the government with information and details of the existing job offer for employment-based I-485 applicants. Under AC21, an adjustment of status applicant may change employers after the I-485 application has been pending for at least 180 days, as long as the new position is in the “same or similar” occupational classification as the position listed in the I-140 petition. Notifying the government of the change in employer and providing proof of the similarity in positions previously occurred through a letter filed with the service center – the new Supplement J form provides a uniform means to file this information with the government. Supplement J still needs to be filed if there is no change in employer – the I-140 petitioner signs the form as confirmation of the ongoing job offer.
I-140 EAD for Compelling Circumstances
As discussed earlier, the I-140 EAD, in practice, is only available to a limited number of I-140 beneficiaries. The applicant must establish “compelling circumstances” warranting issuance of the EAD card, which may include: serious illness or disability of main applicant or dependent, geographic relocation causes undue burden to the applicant, employer retaliation, the beneficiary’s inability to maintain the nonimmigrant status, or significant disruption of the employer. The EAD is meant to be a “stopgap,” and is only issued for one year, with an extension only available with proof of the continuing compelling circumstances, or if the priority date will become current within one year. The EAD does not confer nonimmigrant status and would not allow applying directly for adjustment of status if the priority date becomes current.