Posts Tagged ‘H-4’

USCIS Changes Rules and Procedures for Certain Family Nonimmigrant Petitions

Friday, March 1st, 2019 by W. Scott Railton

U.S. Citizenship and Immigration Services (USCIS) recently announced significant processing changes for the I-539 nonimmigrant extension/change of status form. This is the form used to change or extend status for family members, in association with a primary nonimmigrant application.  For example, if one family member has H-1B status and an extension request is filed, this application is typically filed at the same time for family members.

USCIS is now going to charge more for this application, where biometrics are required of multiple family members.  They will also require each family member to fill out another form. Query:  when was the last time the agency lowered costs or made the paperwork burden less on applicants?

The change takes effec, as of now, on March 11th, 2019.  Less than a month of notice was provided.  Here’s the announcement:

We have revised Form I-539, Application to Extend/Change Nonimmigrant Status and will publish the revised form on our website on March 11, 2019. Starting on March 11, 2019, we will only accept the revised Form I-539 with an edition date of 02/04/19. We will reject any Form I-539 with an edition date of 12/23/16 or earlier. We will also be publishing a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, on the Form I-539 webpage on March 11. Form I-539A replaces the Supplement A provided in previous versions of Form I-539. Form I-539A can only be submitted with Form I-539; it cannot be filed as a standalone form.

The revised Form I-539 includes the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A, which will be available on the Form I-539 webpage on March 11. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 Instructions to be published on March 11.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.

USCIS will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.

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Posted in General, Scott Railton |

New Rules Restricting H-1Bs and H-4 Work Authorization May Be Coming Soon

Friday, December 22nd, 2017 by W. Scott Railton

The Office of Management and Budget recently published its Agency Rule List for Department of Homeland Security for Fall 2017. The list signals upcoming changes to the H-1B and H-4 categories. Also listed are rules concerning ESTA at land port of entries and increased collection of biometrics on entries and exits.

Specifically, the Department of Homeland Security anticipates that it will remove regulations which allow certain H-4 spouses to have work authorization. We don’t know if this will come about, but it is consistent with the Administration’s approach to restricting legal immigration. For this to happen, the Department of Homeland Security will publish a rule in the Federal Register, and receive public comment on the removal of the rule. Subsequently, it will propose final action. In all likelihood, there will not be a revocation of current work authorizations, but at some point affected persons will be unable to apply to renew. It is possible that in the interim legislation will be passed affecting this proposal. It is also possible the Administration may refrain from publishing the rule, though this seems unlikely. It is likely that there will be litigation involving this matter, which could delay things further.

The list also includes notice of the intent of the Department of Homeland Security’s to revise the definition of a specialty occupation, which will affect H-1Bs, and presumably H-1B1s, and E-3s. The proposal says that the agency will focus the process on “obtaining the best and the brightest foreign nationals via the H-1B program.” The notice states that the agency will revise the definition of employment and the employer-employee relationship, and will look at measures regarding compensation to H-1B workers.

The Rule List also says that the agency will propose another rule, requiring electronic registration beforehand for the H-1B lottery. This has the potential to be a good thing, since so many employers spend time and money on H-1B applications which are never selected in the H-1B lottery. However, if this is a means to pre-adjudicate applications, that could turn problematic.

Additionally, the Rule List contains a final rule on collecting biometrics on exit and departures, and registering for ESTA in advance at land borders.

Here are excerpts of the proposed rules from the list:

DHS/USCIS RIN: 1615-AC15 Publication ID: Fall 2017

Title: ●Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

Abstract:

On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule. DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

Agency: Department of Homeland Security(DHS) Priority: Economically Significant
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Yes Unfunded Mandates: Undetermined
EO 13771 Designation: Other
CFR Citation: 8 CFR 214 8 CFR 274a (To search for a specific CFR, visit the Code of Federal Regulations.)

Legal Authority: 6 U.S.C. 112 8 U.S.C. 1103(a) 8 U.S.C. 1184(a)(1) 8 U.S.C. 1324a(H)(3)(B)

Legal Deadline: None
Statement of Need:

DHS is reviewing the 2015 final rule in light of issuance of Executive Order 13788, Buy American and Hire American.

Summary of the Legal Basis:

The Secretary of Homeland Security (Secretary) has the authority to amend this regulation under section 102 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorize the Secretary to administer and enforce the immigration and nationality laws. In addition, section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), provides the Secretary with authority to prescribe the time and conditions of nonimmigrants’ admissions to the United States. Also, section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary’s discretionary authority to extend employment authorization.
Alternatives:

Anticipated Costs and Benefits:
DHS anticipates that there would be two primary impacts that DHS can estimate: the cost-savings accruing to forgone future filings by H-4 spouses, and labor turnover costs that employers of H-4 workers could incur.

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DHS/USCIS RIN: 1615-AC13 Publication ID: Fall 2017
Title: ●Strengthening the H-1B Nonimmigrant Visa Classification Program
Abstract:
The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Undetermined Unfunded Mandates: Undetermined
EO 13771 Designation: Other
CFR Citation: 8 CFR 214.2(h)(4)

Legal Authority: 8 U.S.C. 1184

Legal Deadline: None
Statement of Need:
The purpose of these changes is to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation. In addition, these changes are intended to ensure that the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections.
Summary of the Legal Basis:
Alternatives:
Anticipated Costs and Benefits:
DHS is still considering the cost and benefit impacts of the proposed provisions. In general, DHS anticipates that there may be some filing fees and opportunity costs of time in preparing and filing forms for the eligible population. DHS also anticipates benefits in the form of reduced fraud and abuses of the current H-1B program.

Risks:
Timetable:
Action Date FR Cite
NPRM 10/00/2018

Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: Undetermined
Federalism: Undetermined
Included in the Regulatory Plan: Yes
RIN Information URL: www.regulations.gov
Public Comment URL: www.regulations.gov

RIN Data Printed in the FR: No
Agency Contact:
Kevin Cummings
Division Chief, Business and Foreign Workers Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
Office of Policy and Strategy, 20 Massachusetts Avenue, NW.,
Washington, DC 20529
Phone:202 272-8377
Fax:202 272-1480
Email: kevin.j.cummings@uscis.dhs.gov

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DHS/USCIS RIN: 1615-AB71 Publication ID: Fall 2017
Title: Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations
Abstract:
The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of alien workers subject to annual numerical limitations. This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. companies has often exceeded the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions. The Department published a proposed rule on this topic in 2011. The Department intends to publish an additional proposed rule in 2018. The proposal may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: No Unfunded Mandates: No
EO 13771 Designation: Other
CFR Citation: 8 CFR 214

Legal Authority: 8 U.S.C. 1184(g)

Legal Deadline: None
Statement of Need:
This regulation would help to streamline the process for administering the H-1B cap process and to ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.
Summary of the Legal Basis:
Alternatives:
DHS is currently in the process of considering policies that align with our overarching goals of ensuring the allocation of H-1B cap numbers are provided to the best and brightest foreign national beneficiaries, and ensuring that the operational process is as efficient as possible.
Anticipated Costs and Benefits:
While DHS is currently in the process of assessing the costs and benefits of the policy changes under consideration, DHS believes that in aggregate the proposed changes would result in better resource management and predictability for both USCIS and petitioning employers. DHS anticipates that implementing a pre-registration process could benefit the regulated public by potentially reducing the cost and time involved in petitioning for H-1B nonimmigrants, through an up-front cap selection process where only those employers who have obtained a cap number would be required to submit the entire Petition for a Nonimmigrant Worker, Form I-129.
Risks:
Timetable:
Action Date FR Cite
NPRM 03/03/2011 76 FR 11686

NPRM Comment Period End 05/02/2011
NPRM 02/00/2018

Additional Information: USCIS 2443-08. Includes Retrospective Review under E.O. 13563.
Regulatory Flexibility Analysis Required: Yes Government Levels Affected: None
Small Entities Affected: Businesses Federalism: No
Included in the Regulatory Plan: Yes
RIN Information URL: www.regulations.gov
Public Comment URL: www.regulations.gov

RIN Data Printed in the FR: Yes
Agency Contact:
Kevin Cummings
Division Chief, Business and Foreign Workers Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
Office of Policy and Strategy, 20 Massachusetts Avenue, NW.,
Washington, DC 20529
Phone:202 272-8377
Fax:202 272-1480
Email: kevin.j.cummings@uscis.dhs.gov

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DHS/USCBP RIN: 1651-AB12 Publication ID: Fall 2017
Title: Collection of Biometric Data Upon Entry to and Exit From the United States
Abstract:The Department of Homeland Security (DHS) is required by statute to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometric identifiers, of aliens entering and departing the United States. In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, published in the Federal Register at 82 FR 13209, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system.  Although the current regulations provide that DHS may require certain aliens to provide biometrics when entering and departing the United States, they only authorize DHS to collect biometrics from certain aliens upon departure under pilot programs at land ports and at up to 15 airports and seaports.  To provide the legal framework for CBP to begin a comprehensive biometric entry-exit system, DHS is amending the regulations to remove the references to pilot programs and the port limitation.  In addition, to facilitate the implementation of a seamless biometric entry-exit system that uses facial recognition, DHS is amending the regulations as they pertain to the provision of photographs upon entry and exit.
Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage
Major: No Unfunded Mandates: Undetermined
EO 13771 Designation: Other
CFR Citation: 19 CFR 215.8    19 CFR 235.1
Legal Authority: 8 U.S.C. 1365a    8 U.S.C. 1365b
Legal Deadline:  None
Statement of Need:This rule is necessary to provide the legal framework for DHS to begin implementing a comprehensive biometric entry-exit system.  Collecting biometrics at departure will allow CBP and DHS to know with better accuracy whether aliens are departing the country when they are required to depart, reduce visa fraud, and improve CBP’s ability to identify criminals and known or suspected terrorists before they depart the United States.
Summary of the Legal Basis:Numerous Federal statutes require DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens, compares the biometric data of aliens to verify their identity, and authenticates travel documents presented by such aliens through the comparison of biometric identifiers.  See, e.g. , Immigration and Naturalization Service Data Management Improvement Act of 2002, the Intelligence Reform and Terrorism Prevention Act of 2004, and the 2016 Consolidated Appropriations Act.  In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system.
Alternatives:
Anticipated Costs and Benefits:This rule will allow CBP to know with greater certainty whether foreign visa holders depart the country when required. It will also prevent visa fraud and allow CBP to more easily identify criminals or terrorists when they attempt to leave the country. The technology used to implement this rule could also eventually be used to modify entry and exit procedures to reduce processing and wait times. This rule imposes opportunity and technology acquisition and maintenance costs on CBP and opportunity costs on the traveling public.
Risks:
Timetable:

Action Date FR Cite
Interim Final Rule 04/00/2018
Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: Undetermined
Federalism: Undetermined
Included in the Regulatory Plan: Yes
RIN Data Printed in the FR: No
Agency Contact:
Michael Hardin
Deputy Director
Department of Homeland Security
U.S. Customs and Border Protection
Customs and Border Protection, Entry/Exit Policy and Planning, 1300 Pennsylvania Avenue, NW, Office of Field Operations, 5th Floor,
Washington, DC 20229
Phone:202 325-1053
Email: michael.hardin@cbp.dhs.gov

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DHS/USCBP RIN: 1651-AB14 Publication ID: Fall 2017
Title: Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders–Automation of CBP Form I-94W
Abstract:This rule amends Department of Homeland Security (DHS) regulations to implement the Electronic System for Travel Authorization (ESTA) requirements under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, for aliens who intend to enter the United States under the Visa Waiver Program (VWP) at land ports of entry.  Currently, aliens from VWP countries must provide certain biographic information to U.S. Customs and Border Protection (CBP) officers at land ports of entry on a paper I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W).  Under this rule, these VWP travelers will instead provide this information to CBP electronically through ESTA prior to application for admission to the United States.  DHS has already implemented the ESTA requirements for aliens who intend to enter the United States under the VWP at air or sea ports of entry. 
Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage
Major: No Unfunded Mandates: No
EO 13771 Designation: Other
CFR Citation: 8 CFR 212.1    8 CFR 217.2    8 CFR 217.3    8 CFR 217.5    8 CFR 286.9
Legal Authority: Pub. L. 110-53
Legal Deadline:  None
Statement of Need:This rule is necessary to implement the Electronic System for Travel Authorization (ESTA) under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 for aliens who intend to enter the United States under the Visa Waiver Program at land ports of entry.  ESTA was implemented at air and sea ports of entry in 2008.  At that time, however, CBP did not have the ability to implement the program at land ports of entry.  This rule will ensure that ESTA is now implemented at all ports of entry.
Summary of the Legal Basis:
Alternatives:
Anticipated Costs and Benefits:In addition to fulfilling a statutory mandate, the ESTA Land rule will strengthen national security through enhanced traveler vetting, streamline entry processing through Form I-94W automation, reduce inadmissible traveler arrivals, and produce a consistent, modern VWP admission policy in all U.S. travel environments, which will benefit VWP travelers, CBP, and the public.  The rule will also introduce time and fee costs to VWP travelers required to complete an ESTA application.
Risks:
Timetable:

Action Date FR Cite
Interim Final Rule 04/00/2018
Regulatory Flexibility Analysis Required: No Government Levels Affected: None
Federalism: No
Included in the Regulatory Plan: Yes
RIN Data Printed in the FR: No
Agency Contact:
Suzanne Shepherd
Director, Electronic System for Travel Authorization
Department of Homeland Security
U.S. Customs and Border Protection
1300 Pennsylvania Avenue NW.,
Washington, DC 20229
Phone:202 344-2073
Email: suzanne.m.shepherd@cbp.dhs.gov

 

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The President’s Executive Actions for Employers and Employees

Tuesday, December 9th, 2014 by W. Scott Railton

Businesses and professionals have asked us how the President’s executive actions may impact them. The language and memorandums are very promising.  However, we will have to wait and see how things play out. Many of the particulars still have to make it through the Federal Register publication process, which includes agency drafting of rules and required public comment periods.

Things to know:

1. Resources

Probably the best introductory resource is the Department of Homeland Security’s dedicated page, which references a number of different memorandums and actions.  For the DHS memo which addresses changes for employers and high skilled workers, visit here. The White House’s website and dedicated webpage is also a good resource.  The American Immigration Council has published a comprehensive summary of the President’s actions.

2. The Law and Politics of the Executive Action

Seventeen states, led by the Texas Attorney General, filed a lawsuit last week to stop the President’s actions, based on claims that his actions are unconstitutional, as an overreach of his authority. Our take, in a nutshell, is the President’s actions are constitutional, due to the existing broad delegation of authority in the Immigration and Nationality Act.  If Congress wants to change things, it will need to pass a law.  Some judges may disagree, at least in part, and some of the President’s actions are edgier than others, and so we’ll wait and see.

The House of Representatives passed a bill last week, by a small majority, voting on partisan lines, which found the actions unconstitutional. It is unlikely the bill will go anywhere. Even if it passed the Senate, the President presumably would veto the bill.

3. Timing

It is going to take a while for the actions to take effect. In many cases, federal regulations and processes have to be drafted, and published in the Federal Register first for comment. For less-specific orders, such as where the President ordered agencies to consult to streamline immigration processing measures, some activity may be seen after the turn of the year. Of course, it’s possible the litigation may slow things down.

Some of the proposals to help high skilled workers have been in the making for a while, such as H-4 work authorization for spouses of persons with approved I-140s. That should be coming soon, and would likely be of interest to some.

In 2012, the Deferred Action for Childhood Action program was announced in June, and the agency began accepting applications two months later. It will be interesting to see how fast the affirmative application processes can be implemented here.

4. Specific measures Impacting Businesses

a. Perhaps the most noteworthy possible change related to business is the possibility of “preregistration” for those who have an approved I-140 but don’t have a current priority date. This has been mentioned in stakeholder briefings from the White House, but hasn’t explicitly made it into the press releases or other announcements. This would allow a process to apply for an employment authorization/travel document. It is possible this will be written into the regulations, but we’ll have to wait and see. It’s also possible the proposal needs to be further vetted before release, as the statute on adjustment of status is relatively clear. Such an action could impact many persons who are stuck in long waits, and could reflect the White House statements concerning relief to 400,000 workers.

b. Guidance is likely to be issued that will allow a more liberal view of portability for position same or similar position changes, when persons switch positions with after having an immigrant visa petition. This would provide more confidence to employers and beneficiaries in taking promotions and other natural career changes.

c. The President has asked the agencies involved in issuing visas to come up with a plan to coordinate between them to streamline the application process (e.g. single data entry, background checks). The expectation is measures will also speed up the process.

d. The agencies have been directed to take measures to favor entrepreneurs, such as greater use of the National Interest Waiver provisions for job-creators.

e. The PERM labor certification system is supposed to be reevaluated and amended. This sounds promising, but it could take a long time to have impact, due to federal regulation and internal system processes. It has been asked that the process include harmless error provisions, which would at least cover clerical errors. Ideally, we’ll see an expanded use of Schedule A. For instance, we have lobbied for use of Schedule A with regard to physicians practicing in underserved areas.

f. There may be a number of revisions to Optional Practical Training (OPT) for foreign students. The DHS Secretary has directed the agency to expand the list of STEM degree programs eligible for automatic OPT extensions of 29 months for certain employers (which would include Providence). That period may be lengthened too, though no alternative length of time has been said. There also may need to be closer nexus between degree and training than which has been required to date. There are also indications of labor market protections being implemented related to OPT usage.

These are just some of the highlights. There are other reforms which may come in relation to the use of parole, military enlistment, and other areas. Of course, the centerpiece of the proposal is the Deferred Action programs for parents of U.S. citizens and lawful permanent residents, and the expansion of the rules for the Deferred Action for Childhood Arrivals. Experts say these latter two proposals could create work authorization for roughly 5 million persons.

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Work Authorization Coming for Certain H-4 Dependents of H-1Bs

Wednesday, May 7th, 2014 by W. Scott Railton

The Department of Homeland Security announced today that it is opening for comment rules that will ultimately allow certain H-4 dependents to apply for work authorization.

As proposed, eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

a.) Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

b.) Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

This is a move in the right direction, albeit to a limited group.  If the DHS’s goal is to attract and retain highly skilled workers, there’s a strong argument for opening up work authorization for **all** H-4 dependents. In today’s economy, many couples will not move somewhere unless both can work.

The Government also announced a proposed rules update for E-3 Australian and H-1B1 workers. These are professionals similar to the H-1B workers.  Perhaps most notably, the agency now intends to allow persons in that status the 240 day grace period of work authorization which is permitted for other nonimmigrant work categories.  The Government also proposes to modify its rules on evidence for EB-1 Outstanding Professors and Researchers.

For the full DHS announcement, visit here:

http://www.dhs.gov/news/2014/05/06/dhs-announces-proposals-attract-and-retain-highly-skilled-immigrants

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