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Employment Authorization for Spouses of H-1B Visa Holders?

 

H1_B, DHS, USCIS H-4Today May , 2014, the Department of Homeland Security (DHS) today announced the publication of two proposed rules, including a rule to extend employment authorization to spouses of certain H-1B workers, and a proposal to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining in the United States. It is hoped that Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas. 

“These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

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

Proposal to Enhance Opportunities for Highly-Skilled Workers
This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas.  “These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

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

Proposal to Enhance Opportunities for Highly-Skilled Workers
This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

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USCIS Announces H-1B Lottery

 

H1-B H-1B, USCIS, H1BUSCIS announced on April 7 that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

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H-1B Visa Application Season Starts on April 1 2013

 

H1-B; H-1B visa non immigrant visaOn April 1, 2013, the United States Citizenship and Immigration Service (USCIS) begins accepting H1-B visa applications for the 2014 fiscal year (which starts on October 1, 2013).   In 2008, U.S. Citizenship and Immigration Services (USCIS) received approximately 163,000 petitions during the five-day filing period and conducted a random lottery to select the 65,000 petitions that would be eligible for processing.  In 2007, the USCIS reached its H-1B visa quota in one day.  Due to the slump in the economy, last year all H-1B visas were not taken until the end of June 2012.   While we cannot predict how quickly these visas will be taken, since the economy has picked up, we guesstimate that the cap will be reached well before June 2013.

The H-1B  visa program enables U.S. employers to hire highly educated foreign professional workers for “specialty occupations” — jobs that require at least a bachelor’s degree or the equivalent in the field of specialty.  These foreign workers provide needed specialized or unique skills, fill a temporary labor shortage and/or supply global expertise.  Holders of these visas can stay in theUnited Statesfor up to six years.

 Employers seeking H-1B visas should start planning ahead.  Unlike in previous years, obtaining a certified Labor Condition Application (LCA) is no longer immediate upon submission online.  Now employers have to submit the LCA to the Department of Labor and wait up to seven days if not longer to obtain an approved LCA.  The LCA contains several attestations by the employer including an attestation that they will pay the H1-B employee the prevailing wage for the job position.

Many employers have already experienced delays in obtaining an approved LCA where the Department of Labor cannot verify the employer’s tax identification number and requires additional documentation before providing an approved LCA. 

Prudent employers need to start considering and planning their H-1B visa needs for the upcoming fiscal year.  It is also advisable for employers to start making contingency plans for bringing temporary professional workers to theUnited Statesif the H1-B cap is reached. 

 WHY THE EARLY H-1B VISAS CUT-OFF?

 H-1B visas are limited to 65,000 per year.  However, certain cases are exempt from the cap.  This numerical limit is further reduced by free trade agreements that specifically allocate 6,800 H1-B visas for nationals ofSingaporeandChilemaking only 58,200 visas available in the standard H-1B pool. 

 WHO IS EXEMPT FROM THE H1-B CAP?

 The following cases are exempt from the H1-B cap: 1) extensions for current H1-B workers, whether for a new or existing employer in sequential employment situations; 2) concurrent employment in a second H-1B position; 3) amended petitions; 4) H-1B employment for nationals of Chile or Singapore, 5) petitions for new employment at an exempt organization such as a nonprofit research organization, an institution of higher education or an affiliated non-profit entity and 6) 20000 H-1B visas for graduates of U.S. universities who have earned a Master's or higher degree.

 IMPACT OF THE EARLY CUT-OFF OF H1-B VISAS

After the H-1B cap is reached, private employers cannot hire new temporary professional workers in H-1B status for the 2012 fiscal year.  For those employers in need of hiring temporary professional foreign workers after the H-1B cap is reached, there may be alternative options available.

 WHAT OTHER VISA OPTIONS ARE AVAILABLE?

The L-1 Intracompany Transferee Visa

 The L-1 or intra-company transfer visa facilitates the transfer of key employees from a foreign corporation to aU.S.branch, parent, subsidiary, or affiliated entity.  This visa allows aU.S.company to bring in top-level managerial, executive, or specialized knowledge employees for a temporary period.  The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for theU.S.company in a similar position.  It need not be the same status as overseas (ex: specialized knowledge overseas could be a manager in theUnited States.  Only needs to be in one of the three classes:  manager, executive, or specialized knowledge).  The foreign entity may pay the employee his or her salary but theU.S.company must control the employee’s performance of his or her work.  Authority to engage and terminate the employee is strong evidence of control.  There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization.  The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in theUnited States.  There is a five-year limit on L-1B employees with specialized knowledge staying in theUnited Statesand a seven-year limit for L-1A managers and executives.

 Consular posts generally see an increase in L-1 applications after the H-1B cap is reached.  However, there is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other type of visas, including L visas. 

 The Treaty-Trader/Treaty -Investor Visa (E-1/E-2)

 E or treaty visas are available to persons or entities engaging in trade between theUnited Statesand their home country or persons and entities coming to theUnited Statesto develop and direct enterprises in theUnited Statesin which they are investing substantial amounts of capital.  The E-2 category includes individual investors and managers, executives, and essential skills employees of business entities that do the investment.  As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between theU.S.and the applicant’s home country.  For treaty traders, the company set up in theUnited Statesmust be at least 50% owned by a treaty country national but the applicant does not have to be an owner of the business.  There must be a “substantial” flow of trade (either goods or services) between theU.S.business and the treaty national’s home country.  The USCIS determines whether the trade is substantial on a case-by-case basis.  Factors that may be considered include the nature of the business, the number of transactions, amount of trade and capital outlay.

 With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis.  The investor must have experience in the business and must be actively involved.  The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to theU.S.for a two-year period with unlimited two-year renewals.  Spouses of E visa holders may apply for work authorization.

 TN Status

 Employers may continue to sponsor Canadian and Mexican nationals in TN status under the North American Free Trade Agreement (NAFTA).  This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA.  The applicant must have the degree or credentials required for that profession.  The TN visa is valid for three years and may be renewed indefinitely.  A spouse of an employee in TN status is not eligible for work authorization.

 

The O Visa

 Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa.  Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition.  Beneficiaries in the arts must show prominence and a record of extraordinary achievement.  Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field.  The O visa is usually granted for three years and is renewed in one-year increments.  The O visa may be renewed indefinitely.  A spouse of an O visa holder cannot apply for work authorization.

 The J-1 Exchange Visitor Visa

 This visa is available to foreign nationals to enter theUnited Statesas exchange visitors to participate in government approved exchange programs.  First, the prospective employer must establish an approved exchange program.  Such program may be sponsored by government agencies, private businesses or educational agencies.  The foreign national may then enter theUnited Statesfor the purpose of doing research, gaining training or studying.  Depending on the foreign national’s qualifications and the type of exchange program, the J-1 visa is available anywhere from eighteen months for most trainees to forty two months for professors and research scholars.  Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

 MAKING THE H1-B CUT-OFF FOR FY 2014The prudent employer will be well-served in starting to consider their employment needs for the upcoming fiscal year.  Because the USCIS generally works on petitions in the order they were received, it may be worthwhile to pay the extra $1,225.00 premium processing fee to have your H1-B visa applications adjudicated in fifteen days. 

 Unless Congress raises the annual H1-B visa cap, employers will have to file their H1-B petitions as early as possible and make use of other visas available to bring temporary workers to the United States for FY 2014.  Readers are encouraged to contact their senators and representatives to push for an increase in the H-1B cap.

 

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H-1B Cap Reached June 11 2012

 

H-1BU.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY) 2013. Yesterday, June 11, 2012, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2013.

On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012.

USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.

Cap Amounts

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

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USCIS to Accept H-1B Petitions Beginning April 2, 2012

 

 H-1B VisaU.S. Citizenship and Immigration Services (USCIS) announced today that it will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2013 cap on Monday April 2, 2012. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee. USCIS will not rely upon the date that the petition is postmarked.

The congressionally mandated numerical limitation on H-1B petitions for FY 2013 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap.

USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If the number of applications received exceeds the numerical cap, USCIS will randomly select the number of petitions required to reach the numerical limit from the pool of petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Mariana Islands are exempt from the cap until December 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in FY 2012.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process FY 2012 petitions filed to:

    extend the amount of time a current H-1B worker may remain in the United States;

    change the terms of employment for current H-1B workers;

    allow current H-1B workers to change employers; or

    allow current H-1B workers to work concurrently in a second H-1B position.

    H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and requests for evidence. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

     

     

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    H-1B Visa Count (January 14, 2011) | 4300 Regular Cap Visas Remain

     

    USCISAs of December, 24, 2010, the Master's exemption number for H-1B has been reached. For the regular H-1B cap, we are in the final stretch and expect the remaining 4300 H-1B visas to be used  in the next 2-3 weeks. It reflects the sluggish economy, the high unemployment (9.6%) and the tax uncertainty.

    The good news is that you can still apply for the fiscal year 2011!

    More information can be found at the USCIS H-1B Fiscal Year (FY) 2011 Cap Season Page.

    Cap Type

    Cap Amount

    Cap Eligible Petitions

    Petition Target


    Date of Last Count

    H-1B Regular Cap

    65,000

    60,700

     

    1/14/2011

    H-1B Master's Exemption

    20,000

    20,000

     

    1/14/2011

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    H-1B Visa Count (November 5, 2010)

     

    USCISThe Master's exemption number for H-1B is close to the quota (less than 3,800 remaining). For the regular H-1B cap, the rate remains around 1,200 new petitions per week.  It reflects the sluggish economy, the high unemployment (9.6%) and the tax uncertainty.

    The good news is that you can still apply for the fiscal year 2011! It is also possible that we can see before the hollidays and after the elections a surge in H1-B applications.

    More information can be found at the USCIS H-1B Fiscal Year (FY) 2011 Cap Season Page.

    Cap Type

    Cap Amount

    Cap Eligible Petitions

    Petition Target


    Date of Last Count

    H-1B Regular Cap

    65,000

    46,800

     

    11/05/2010

    H-1B Master's Exemption

    20,000

    17,200

     

    11/05/2010

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    H-1B Visa Count (September 17, 2010)

     

    USCISHere is the latest H-1B cap count released (Septemer 17, 2010).  More information can be found at the USCIS H-1B Fiscal Year (FY) 2011 Cap Season Page.

    Cap Type

    Cap Amount

    Cap Eligible Petitions

    Petition Target


    Date of Last Count

    H-1B Regular Cap

    65,000

    38,300

     

    9/17/2010

    H-1B Master's Exemption

    20,000

    14,000

     

    9/17/2010

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    H-1B Visa Count (August 27, 2010)

     

    USCISHere is the latest H-1B cap count released (August 27, 2010).  More information can be found at the USCIS H-1B Fiscal Year (FY) 2011 Cap Season Page.

    Cap Type

    Cap Amount

    Cap Eligible Petitions

    Petition Target


    Date of Last Count

    H-1B Regular Cap

    65,000

    34,900

     

    8/27/2010

    H-1B Master's Exemption

    20,000

    13,000

     

    8/27/2010

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    H-1B Visa Count (August 6, 2010)

     

    USCISHere is the latest H-1B cap count released (August 6, 2010).  More information can be found at the USCIS H-1B Fiscal Year (FY) 2011 Cap Season Page.

    Cap Type

    Cap Amount

    Cap Eligible Petitions

    Petition Target


    Date of Last Count

    H-1B Regular Cap

    65,000

    28,500

     

    8/6/2010

    H-1B Master's Exemption

    20,000

    11,900

     

    8/6/2010

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