Rahul Reddy, Attorney at law

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 will be published in the Federal Register November 18, 2016. The rules will go into effect 60 days afterwards.

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 current 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Extending H-1B status beyond the 6th year when an I-140 approval has been withdrawn  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 current 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 current 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 will be adding a form, called Supplement J, to its I-485 adjustment of status application. This form will serve 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 used to occur through a letter filed with the service center – the new Supplement J form will provide a uniform means to file this information with the government.

  • Supplement J will still need to be filed if there is no change in employer – the I-140 petitioner would sign the form as confirmation of the ongoing job offer.

I-140 EAD for Compelling Circumstances

  • As discussed earlier, the I-140 EAD, in practice, will only be 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.

Please continue checking Reddy & Neumann’s news section for updates concerning the provisions of the final rule, as they become available.


Rahul Reddy, Attorney at Law (www.rnlawgroup.com)

This past Tuesday, the United States of America elected Donald J. Trump to be the 45th President. 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 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. While we do not know what President Elect Trump will do once in office, it is safe to guess that his policy will focus on stopping illegal immigration, rather than removing or drastically changing legal immigration avenues that exist currently. The H-4 EAD program is one such avenue. It is unlikely that this regulation will be changed or removed in any way that will substantially affect those who hold the visa, or it’s availability to those who wish to enter the United States by obtaining one.

President Elect Trump has stated that he will roll back the executive orders known as DACA and DAPA which allow undocumented immigrants with clean criminal records to come forward and join a path to citizenship. The end of these policies should not be interpreted as wholly anti-immigrant sentiment, but rather as encouragement for workers, individuals, and families to enter the United States legally. Immigrants in the United States on visas like the H-4 EAD should not be affected. One reason is that these immigrants are in the U.S. legally, and therefore not subject to the provisions outlined in the executive orders the President Elect has said he will repeal. Additionally, unlike DAPA and DACA, the regulations giving rise to the H-4 EAD visa were promulgated by regulatory agencies, and are not based in an executive order. Even if Donald Trump does 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 administrations coming in January will be 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 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.

 

 

 

Donald Trump’s victory in the presidential race last night has left many Muslims questioning their future in this country, since Trump has previously advocated a ban against all Muslims entering the U.S. This article seeks to shed some light onto whether Trump’s promise could actually become a reality.

Is a religion-based ban legal? It is quite possible that Trump’s proposal for a religion-based ban is unconstitutional. It would most likely not pass the test of U.S. constitutional guarantees of due process, religious freedom, and equal protection, and would likely be struck down by the Supreme Court if he attempted to implement it by presidential decree. While a ban on immigrants from certain countries has some historical precedent, Trump’s proposed plan would go beyond that, targeting not just a country or a region of the world but also a religion, which no U.S. president has done in recent history.

Is Trump likely to stand behind his promise? More recently, Trump has altered his stance regarding a ban on all Muslims. He has since clarified his stance to say that America will not admit those who “support bigotry and hatred” or have “hostile attitudes to the U.S.” A a spokeswoman from his campaign, went on the record this summer saying that Trump no longer supports a blanket ban and only seeks to ban Muslims from terror states. This shift in language from the Muslim religion to “dangerous and volatile regions that export terrorism” has been reflected on Trump’s campaign website as well, and could bode well for countries that are not traditionally associated with terrorism.

Is this plan practical, even if it does pass? In reality, an officer could not identify immigrants by religion unless the immigrant chose to divulge his faith or unless the officer spent the time to look into the immigrant’s religious history in his native country. This interrogation strategy would be extremely difficult and time-consuming to implement, with no guarantee that the immigrant's true religious background has been identified. Security and immigration officials have gone as far to say that the personal interrogation required for a religion-based ban would essentially be "unworkable" and an "impossibility"

 

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.

Donald Trump has won the United States presidential election, but the sky is not falling, and there is no reason to panic.

The past year of Presidential campaign rhetoric has made immigrants and nonimmigrant workers alike fearful for the future. But remember that much of the rhetoric is just talk, and much of the fear may not be warranted.

First, the visa categories and their counts are controlled by Congress. A President Trump therefore cannot take away visas on his own. Additionally, based on his business history, his consistent campaign rhetoric in favor of legal immigration, and his wife’s previous status as an H-1B fashion model, Donald Trump is highly unlikely to limit legal immigration.

Second, the outcome of a Donald Trump presidency could be an improved legal immigration system. Although both houses of Congress are under Republican control, the Republican Party is splintered, and will require aid from Democrat lawmakers to pass reforms in any area, including immigration. This will demand building consensus, which may be assisted in Trump’s famed flexibility and deal-making.

Finally, the United States is a democratic republic. We vote for our leaders, and can vote for new leaders if their predecessors failed us. President-elect Trump is tasked with the enormous duty of healing deep divides in class, race, gender, and nationality. His progress will be reviewed by the voters just two years from now in the mid-term elections for Congress, and again in four years for his own re-election. People are expecting not just change, but improvement to the way legal immigration works. His feet will be held to the fire by both political parties to make good changes happen.

There is constant change in the United States, but voter-based change is the promise which the country was founded on. Regardless whether your favorite candidate won or lost their election, President Trump must be a President for every American.

 

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.