Much excitement and anticipation was raised on November 21, 2014 when President Obama issued an executive order to make changes to the U.S. immigration system. Soon thereafter, the President issued a Presidential Memorandum directing the Secretaries of State and Homeland Security to develop recommendations on streamlining and reforming the United States’ legal immigration system. Many were hopeful that one such effort at reform might allow those Employment-Based green card applicants with backlogged priority dates an opportunity to file an I-485 application based on an approved I-140 petition.

Public Comments Requested

While most of the media buzz surrounded the President’s plans to expand the Deferred Action program for certain undocumented individuals, the Department of Homeland Security and the State Department quietly issued a Notice of Request for Information seeking public comments on ways that the current employment-based immigration system could be improved within the current statutory framework.  Little has been discussed on this topic since the written comment period closed on January 29, 2015. 

Injunction Not Applicable

Many individuals who could potentially benefit from improvements to the current system assume that no further action will be taken due to the injunctions blocking President Obama’s executive action. However, the recent announcement that the long-awaiting H-4 EAD proposal will finally be implemented is a positive sign that other parts of the president’s plan can continue in spite of the injunction. Contrary to the Deferred Action program changes, the Employment-Based immigration reform plans have been going through the normal administrative process for agency action. Therefore, the Employment-Based proposals are not at issue in the injunction, which seeks to halt changes that were not implemented through normal agency procedures.

Possible Action before the End of the Year

Based on this distinction, the Department of Homeland Security continues to have a strong interest in improving the current immigration system by more fairly allocating Employment-Based visa numbers. This likely reflects the potential of allowing those with approved I-140s to file an I-485 application even without a current priority date. If public comments to the earlier Request for Information are positive in regards to this issue, it is likely that the agency recommendations will incorporate a solution to the backlog by allowing certain individuals to file the I-485 application in advance of the priority date being current. Other likely recommendations would allow recapture of previously unused green cards or changing the way dependents are counted.

The timeline for an actual proposed regulation and final rule could vary. Generally, the proposed rule may extend another comment period, which typically ranges from 30 to 60 days, before a final rule is submitted. However, in certain situations, the comment requirement may be waived. Based upon timelines of past regulations, we anticipate that this proposed rule could be published possibly in the next 4 to 9 months. 

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.

Question: If my spouse is on an H-1 visa and has an I-140 approved, can I apply for the H-4 EAD even though I applied for the H-1 lottery last year and my H-1 petition was denied.

Answer: YES YOU CAN! H-4 dependents with spouses on H-1 visas with approved I-140s or 7th year extensions can apply for an EAD EVEN IF they filed an H-1B petition that was rejected in the H-1B visa lottery.

The following is false information that has been circulating recently: H-4 visa holders will be ineligible for the EAD if they apply for a cap-subject H-1B visa, even if their H-1B spouse is the beneficiary of an approved I-140 or is beyond the 6th year of H-1B status. 

 

10292 Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations:

“vii. H–4 Dependent Spouses Not Selected in the H–1B Lottery Less than 20 commenters requested a carve-out for H–4 dependent spouses who had filed an H–1B petition but who were not selected in the H–1B computer-generated random selection process (‘‘H–1B lottery’’). Although DHS appreciates the frustration that may result from not being selected in the H–1B lottery, the Department declines to extend eligibility for employment authorization to these H–4 dependent spouses. This rule is not a substitute for the H–1B program and is not intended to circumvent the H–1B lottery. A primary purpose of this rule is to help U.S. businesses retain the H– 1B nonimmigrants for whom they have already filed an employment-based immigrant petition. Expanding the rule to help nonimmigrants in other situations does not directly support this goal."

The above paragraph is an excerpt from the government’s response to comments on the then-proposed H-4 EAD rule, published in the Federal Register. The misinterpretation of this excerpt from the Federal Register has been the source of significant confusion for many who expected to receive the EAD based on the proposed rule, and who were also considering filing a cap-subject H-1B visa application this year. The government’s statement above was made in the context of specifically addressing the suggestion by some 20 commenters during the comment period, that the EAD should be made available to all individuals in H-4 status whose applications are rejected in the cap-subject H-1B lottery. The suggestion by these 20 commenters was that the Department of Homeland Security should make the rule more expansive to include all H-4 spouses, and that the EAD should not be limited to spouses of H-1B workers who were either beyond the sixth year of H-1B status, or who were beneficiaries of an approved I-140 petition. In the above excerpt, DHS is explaining why it is declining to follow the suggestion of these 20 commenters to extend EAD eligibility to all H-4 visa holders – essentially, DHS does not want to make the EAD available to all H-4 spouses, because the purpose of the current H-4 EAD rule is to help U.S. businesses retain the workers for whom they have already filed an I-140. The above statement does not affect the ability of H-4 visa holders who are otherwise eligible to apply for the EAD; i.e., an H-4 visa holder is still eligible to file the I-765 application in May and receive the EAD, even if they are the beneficiary of a rejected cap-subject H-1B petition in April, as long as their H-1B spouse is either beyond the sixth year of H-1B status, or is the beneficiary of an approved I-140 immigrant petition. Filing a cap-subject H-1B petition in April and being rejected will not affect the ability of these otherwise-eligible H-4 individuals.

 

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.