USCIS no Longer to Deny Religious Worker I-360 Visa Petitions Based on Lawful Status Requirements

On July 5, 2015, and in the wake of the U.S. Court of Appeals for the Third Circuit’s April 7, 2015, decision in Shalom Pentecostal Church v. Acting Secretary DHS, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (PM) on the subject of qualifying U.S. work experience for special immigrant religious workers.

By way of background, the Immigration and Nationality Act (INA) enables a foreign national to obtain a visa as a special immigrant religious worker if the individual meets certain criteria including, among others, the foreign national has been “carrying on” religious work for at least two years preceding the filing of the I-360 visa petition.

In 2008, USCIS – as the Federal Agency empowered to implement this provision of the INA through   regulations – amended its regulations at 8 CFR 204.5(m) to require the religious work carried on by foreign nationals to have occurred continuously for at least the two year period immediately before filing an I-360 visa petition either abroad or in lawful immigration status if in the United States.

In so amending the regulations, USCIS essentially interpreted the “carrying on” provision of the INA statute to mean qualifying work (if gained in the U.S.) must be accomplished while the foreign national is in lawful status.   

Although the foreign national in the Shalom Pentecostal Church case engaged in otherwise qualifying religious work in the U.S. during the two years before his I-360 petition was filed – USCIS denied his petition under the above regulations because he did so without lawful status.

However, the Circuit Court in Shalom Pentecostal held USCIS improperly denied the petition because the regulations at 8 CFR 204.5(m) requiring lawful status for qualifying U.S. religious work constitute an impermissible interpretation of the term/phrase “carrying on” as used in the controlling INA statute, and, therefore, went beyond USCIS’ authority under the law.

The Court found significant the controlling INA statute (itself) did not specifically state the two years of qualifying U.S. religious employment be carried out while the foreign national was in lawful status. The Court reasoned the fact Congress expressly specified “lawful status” in other INA statutes as an operative term was evidence of congressional intent to omit the requirement in the INA statute at issue thereby purposely creating an exception for special immigrant religious workers.    

In acquiescing to the Shalom Pentecostal decision, USCIS states in the July 5 PM that it will no longer deny special immigrant religious worker petitions based on the lawful status requirements at 8 CFR 204.5(m). The USCIS further advises the PM applies to all currently pending I-360 petitions for special immigrant religious worker status and to new petitions filed on or after July 5, 2015 – the date of the Policy Memorandum.     

Please feel welcome to contact the Sharma Law Offices, a highly rated immigration law firm in Atlanta, for assistance with your immigration matters.  

U.S. Supreme Court Decision Broadens Rights Afforded to Same-Sex Couples

In our past news item, DOMA Ruling and Immigration Benefits for Same-Sex Partners, we discussed the implications of a June 2013 Supreme Court of the United States (SCOTUS) decision invalidating an  operative provision of the Federal Defense of Marriage Act (DOMA) affecting same-sex marriages.

More specifically, in U.S. v. Windsor, the SCOTUS struck down Section 3 of the DOMA as unconstitutional. Section 3 of DOMA prohibited the federal government from recognizing same-sex married couples as married for federal purposes.

Prior to U.S. v. Windsor, DOMA, Section 3, had far reaching consequences because many federal laws addressed or hinged upon marital or spousal status.

With respect to federal immigration law, under DOMA, same-sex partners were disallowed immigration benefits conditioned upon the existence of a marriage or spousal status. For example, persons in same-sex unions were excluded from the same immigration benefits obtainable by persons in opposite-sex marriages such as those related to family-based visas, employment-based visas, refugee status, asylum, naturalization, and discretionary waivers.

After Windsor struck down DOMA’s confinement of marriage to heterosexual couples, the U.S. Citizenship and Immigration Services (USCIS) began to recognize same-sex marriages for immigration purposes. In this regard, USCIS issued a series of Frequently Asked Questions (FAQs) specifying how the Windsor decision implicated certain immigration based benefits contingent on marital or spousal status.

In one key FAQ, USCIS concluded the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Therefore, under this “State of Celebration” FAQ, same-sex couples living in a state that did not recognize same-sex marriage could still apply for federal immigration benefits as long as they were validly married in another state that recognized same-sex marriage.

Notably, but for the 2013 SCOTUS Windsor decision, more recent spousal immigration benefits related to the ability to study and work in the U.S. and  discussed in our news items DHS Permits Part-Time F-2 and M-2 Study and Removes DSO Cap and H-4 EAD for Certain Dependent Spouses Now in Effect, would not have applied to persons in same-sex marriages under the pre-Windsor Defense of Marriage Act.

On June 26, 2015, as the title to the present article suggests, the SCOTUS issued another decision in Obergefell v. Hodges which effectively broadens the scope of the Windsor decision.

Whereas Windsor invalidated a provision of a federal law (DOMA), Obergefell addresses the more global issue of whether individual states are permitted to limit the definition of marriage to the union between one man and one woman.

In Obergefell, the SCOTUS found the right to marry is a fundamental liberty protected by the Fourteenth Amendment to the U.S. Constitution that exists between two people of the same sex. In doing so, Obergefell now requires all 50 states to license same-sex marriages and to recognize same-sex marriages legally performed out of state.

Accordingly, de facto expansion of the above mentioned “State of Celebration” FAQ is one result of the Obergefell decision because pre-Obergefell variation in state law as to the validity of same-sex marriage is no longer an impediment to immigration benefits conferred under federal law.

Over the years, Sharma Law Offices, a top rated Atlanta Immigration Lawyer, has handled thousands of marriage-based and employment-based petitions and is proud to work on behalf of individuals and businesses seeking same-sex immigration benefits.

U.S. Supreme Court Solidifies the Doctrine of Consular Nonreviewability

On June 15, 2015, the Supreme Court of the United States issued a decision in Kerry v. Din which reinforces the viability of the judicially created doctrine known as “consular nonreviewability.”

At its broadest, the doctrine of consular nonreviewability is typically understood to mean a consular officer’s decision to deny a visa is not subject to judicial review and scrutiny regarding the underlying bases for such denial. As a narrow exception, the government need only supply a “facially legitimate and bona fide” reason for denying a visa when the denial affects the rights of a U.S. citizen. The end result is an applicant is often bereft of meaningful recourse to test the validity of and/or overcome a consular officer’s decision to deny his or her visa.

The doctrine evolved from case law more or less beginning in the late 1800s at a time when anti-immigration sentiment ran high. The decisions in this line of cases generally found U.S. courts should not interfere with determinations whether to allow foreign nationals into the U.S. because such matters are sovereign and political in nature and rest exclusively within the province of congress. This is sometimes also referred to as “plenary power” of congress to exclude foreign nationals the privilege to enter the United States. 

Under the facts of Kerry v. Din, the foreign national, Kanishka Berashk, a citizen of Afghanistan, is married to Fauzia Din, a naturalized U.S. citizen. Berashk also held a civil servant position (payroll clerk) with the Afghanistan government during a time when the Afghan government was controlled by the Taliban.

Din filed and obtained approval of an I-130 petition for her husband “as an immediate relative” so they could be together as husband and wife in the United States. However, after a prolonged waiting period, the consular officer denied Berashk a visa – vaguely citing an INA provision prohibiting admission of individuals engaged in “terrorist activities.” The denial offered no explanation specifying what terrorist activities Berashk engaged in or what Berashk had otherwise done that led to denial of his visa. One can speculate Berashk’s civil servant position under a Taliban controlled government played some part in the denial.   

Din thereafter filed a lawsuit in U.S. district court seeking relief in the form of an extraordinary writ instructing the government to properly adjudicate Berashk’s visa application and provide notice as to the facts upon which the government relied to deny her husband’s visa. The U.S. district court dismissed Din’s claim under the doctrine of consular nonreviewability. Upon Din’s appeal, the U.S. circuit court disagreed with the district court and found the government’s mere citation to an INA statute in the absence of supporting factual allegations was not a facially valid reason to deny Berashk’s visa application.  

The government thereafter appealed the circuit court’s decision to the U.S. Supreme Court.  Unfortunately for Din and her husband, the Supreme Court vacated the circuit court decision and found Din, as a naturalized U.S. citizen, did not have a right to a more detailed explanation than the “facially legitimate and bona fide” citation to the federal INA statute related to terrorist activities, and, ultimately, Din did not have a due process right for judicial review of the consular officer’s denial.

The importance of carefully crafting visa applications at consulates abroad in the first instance is crucial, especially in light of the continued viability of the doctrine of consular nonreviewability rendering it very difficult to upset a consular officer’s decision to deny a visa. Therefore, it is recommended one contact an experienced immigration attorney to consult on such matters, particularly when there may only be one bite at the apple.

Abandonment of LPR (Green Card) Status (Part II)

In Part I, we touched upon principles and concerns surrounding the issue of abandonment as it generally relates to travel abroad and maintaining Legal Permanent Resident (LPR) or “Green Card” status.

Here, in Part II, we will briefly examine an unpublished Board of Immigration Appeals (BIA) decision in Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015) as an example of how some of the principles discussed in Part I were applied by an Immigration Judge (IJ) and by the BIA to an interesting set of facts.

Under the facts of the decision, the LPR, Otaifah, is a native citizen of Yemen. Otaifah married and came to the U.S. based on derivative status to his wife – a child of a U.S. citizen.

Otaifah, unable to initially find work in the U.S., returned to Yemen, then came back to the U.S. where he found work for a period of time. However, Otaifah quit his U.S. job and returned to Yemen in July 2003. It was during this last trip to Yemen that Otaifah was arrested and jailed in 2004. 

Otaifah was subsequently acquitted of the charges in Yemen and released from jail. Sometime after his release, Otaifah returned to the U.S. in December 2010. Removal proceedings were thus initiated based on Otaifah’s extended absence (July 2003 – December 2010) from the United States.

At issue before the IJ during the removal hearing was whether Otaifah “intended to abandon his status or … his intent to actually reside in the United States” by virtue of his time abroad in Yemen viewed in light of other evidence regarding Otaifah’s comparative ties to the U.S. and Yemen. The IJ noted since Otaifah was in Yemen for over a year; “The Government is aided by the statutory presumption of abandonment of status by departure for more than one year.”

The IJ found Otaifah was arrested in 2004 and was freed from incarceration around September 2007. The IJ recognized the arrest and jailing for the period between 2004 and 2007 as an unforeseen event excusing Otaifah’s absence for this portion of his last stay in Yemen.

During the removal proceeding, Otaifah testified when he last departed for Yemen in July 2003, he intended to stay 7-8 months, then return. He maintained his failure to return was the result of being taken into custody in 2004 and so precluded from entering the U.S. until his release in December 2010. Therefore, a discrepancy in the evidence existed as to whether Otaifah was released in 2007 versus 2010. 

Nevertheless, the IJ decided Otaifah was freed from incarceration in 2007 and able to return to the U.S. during the period from September 2007 and December 2010. The IJ considered the multiple years between 2007 and 2010 an unexplained absence because Otaifah was free and able to return to the U.S., but did not do so.

Based on his finding, the IJ treated Otaifah’s unexplained absence from 2007 to 2010 as “a permanent resident status adopted but then abandoned by departure for an unexplained, lengthy period of time, well more than a year” and held Otaifah “in fact abandoned his lawful permanent resident status in the United States.” 

In so finding, the IJ considered evidence of Otaifah’s ties to the U.S. during the relevant time period(s) as indicia of his intent (or lack thereof) to maintain permanent residence in the U.S. including: Otaifah did not have a U.S. bank account; he had not paid U.S. taxes; he was estranged from his wife; Otaifah had a child who remained in Yemen; Otaifah was not close to his father-in- law; and, Otaifah had no property in the U.S., but property, a store, work, and land in Yemen. 

The IJ found relevant Otaifah’s first two stays in the U. S. were short (2-3 months). Otaifah was unable to find work during the first stay, and during the second – he found work but apparently quit after a short period of time. The IJ further noted Otaifah last flew to Yemen with no return air ticket to the United States.

The IJ was especially concerned Otaifah “came to the United States, left, came to the United States and left, he never appeared to have fully established himself in the United States; rather, it appeared that he was visiting the United States and returning to a domicile in Yemen.”

Consequently, the IJ ordered Otaifah’s removal to Yemen.  

Otaifah thereafter appealed the IJ’s order. On appeal, the BIA narrowly focused on the evidentiary inconsistency regarding Otaifah’s release date. Specifically, the IJ based his finding Otaifah was released in September 2007 on a prison release form dated 09/07, yet in the body of the form it states he was released in 2010.

Since Otaifah claimed he was released in 2010 – the BIA held the government (despite the presumption of abandonment) did not meet its burden to establish Otaifah, who was in Yemen between 2003 and 2010, intended to abandon his status as a lawful permanent resident. The BIA remanded for clarification as to the actual date on which Otaifah was released from prison in Yemen and thereby free to return to the United States.         

As discussed in Part I, the government must prove intent to abandon LPR status in the United States. The above case illustrates the interplay between factors relevant to finding intent including the length of time and frequency one spends abroad, the nature of those visits, the presumption of abandonment for absences in excess of a year, the importance of documentary evidence demonstrating strong and fixed ties to the U.S., and the importance of accurately documenting the temporary purpose of the trip abroad, or how an unexpected occurrence impeded return within a year. 

Sharma Law Offices, a highly rated immigration law firm, remains available to consult on matters affecting travel and status

Abandonment of LPR (Green Card) Status (Part I)

Maintaining Legal Permanent Resident (LPR) status requires intent to permanently reside in the United States. Accordingly, an LPR is subject to a removal order from an Immigration Judge if found to have “abandoned” intent to live in the U.S. permanently.

The issue of abandonment often arises when an LPR travels abroad. Although the LPR’s intent is controlling – the length of time and frequency one spends abroad are factors weighed by Customs and Border Protection (CBP) to readmit LPRs at the port of entry, and by Immigration Judges to determine whether the LPR abandoned intent to maintain permanent residence in the United States.     

As to length of time, absences in excess of 6 months may give rise to a presumption of   abandonment. Absences from the U.S. for a year or more are likely to face the greatest amount of scrutiny because, for one, the Permanent Resident Card or “green card” becomes technically invalid if the LPR is abroad for over a year. In these instances, the LPR may face a greater burden to overcome the presumption of abandonment than for those staying abroad for less protracted timeframes.

As to frequency, a LPR’s intent to maintain permanent residency may come into question if, for example, the individual lives abroad and routinely returns to the U.S. once every 5 months. Without more, an Immigration Judge may very well consider such person to have abandoned LPR status despite keeping stays outside the U.S. under 6 months.

There are certainly legitimate reasons for LPRs to remain abroad for long periods of time. To care for infirm or elderly relatives is one example. In such instances, presenting evidence to CBP at the port of entry demonstrating strong and fixed ties to the U.S. is important indicia of intent to maintain permanent residence and that the stay abroad was indeed for a temporary purpose.

Such evidence may include filing of income tax returns, family members in the U.S., property ownership, bank accounts, insurance, U.S. Driver’s license, and business affiliations. Things like returning to the U.S. on a one way ticket versus a round trip ticket may also be considered.

In addition, obtaining a reentry permit (valid for 2 years) if one knows ahead of time the stay abroad will exceed a year, or applying at a U.S. Consulate abroad for a SB-1 Returning Resident Visa in instances where the LPR is kept away longer than a year due to unforeseen circumstances, are potential preemptive options to consider. In either case, the LPR should be prepared to document the reasons for leaving the U.S., the temporary nature for the stay abroad, and the cause for not returning within a year.

As often the case, travel abroad raises many issues to consider. Having a plan in place to avoid unintentionally abandoning LPR status deserves consideration. Sharma Law Offices, a highly rated Atlanta immigration law firm, is experienced in these matters and is available for a consultation.

In Part II, we will discuss the unpublished Board of Immigration Appeals decision in Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015) which is an example of how some of the principles discussed herein were applied by an Immigration Judge and the Board of Immigration Appeals.

What Is a Public Charge?

Determination that a person is a “public charge,” under U.S. immigration law has been used as grounds for inadmissibility and deportation of immigrants for many years, although deportations on public charge grounds are very rare because the standards are very strict. U.S. immigration officials use the term “public charge” in reference to a person who is considered primarily dependent on the government for assistance, specifically cash assistance in order to maintain an income or provide for institutionalization for long-term care.

Although an individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident, receiving public benefits does not automatically make an individual a public charge.

The following is a list of cash assistance for income maintenance, which can be considered by immigration officials, and disqualify an immigrant, when determining whether an immigrant will be a public charge:

  • Supplemental Security Income;
  • Temporary Assistance for Needy Families (TANF);
  • State and local cash benefit programs that are for the purpose of income maintenance (often called “General Assistance” but which may exist under other names);
  • Long-term care benefits under Medicaid.

However, there are several other program which provide various assistance, and are not considered as a cash benefit for income maintenance purposes, such as:

  • All government health center programs;
  • Educational benefits (including Head Start);
  • Prenatal care;
  • Food Stamps;
  • WIC;
  • Child care assistance;
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
  • Job training programs.

Eligible non-citizens can use all of the services listed above without fear that use of these services will be considered evidence of public charge status. It should also be noted that the totality of the circumstances are taken into account when the USCIS is deciding whether an immigrant is likely to become a public charge. These factors may include the alien’s age, health, family status, assets, financial status, resources, education and skills. No single factor will disqualify an immigrant from becoming a lawful permanent residence, as discretion is used, but the longer an alien has received cash income-maintenance benefits in the past, as well as the greater the amount of benefits, the stronger the implication that the alien is likely to become a public charge.

Modernizing PERM on DOL’s Agenda

In November 2014, the White House released a Presidential Memorandum directing agency heads to make recommendations for improving the U.S. immigration system. In tandem with the release of President Obama’s November 21, 2014 Memorandum, Department of Homeland Security Secretary Jeh Johnson also issued a Memorandum dated November 20, 2014, instructing the U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement implement new policies and regulations designed to “support our country’s high-skilled businesses and workers by better enabling U.S. businesses to hire and retain highly skilled foreign-born workers while providing these workers with increased flexibility to make natural advancements with their current employers or seek similar opportunities elsewhere.” 

In addition to the above documents, the U.S. Department of Labor (DoL) contemporaneously released a Fact Sheet wherein the DoL acknowledges it has not comprehensively examined or modified the permanent labor certification requirements and process (PERM) since its inception ten years ago. As a result, the existing PERM regulatory structure may not align with evolved industry recruitment methods resulting from advances in technology and information dissemination.

Upon such recognition, DoL announced its intent (in the Fact Sheet) to initiate a review of the PERM program and seek stakeholder input on points such as: identifying occupational shortages and surpluses; modernization of recruitment requirements to test the labor market; clarifying the employer’s obligations regarding PERM positions and U.S. workers; case processing timeframes; the possibility of premium processing; and, the feasibility for efficiently addressing nonmaterial errors.

More recently, the DoL published modernization of the PERM process as part of its regulatory agenda. Therein, DoL noticed engagement in rulemaking to consider options to administer the PERM program in a manner more responsive to changes in the national workforce, to further align the program design with the objectives of the immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.   

Although much too early to celebrate, those familiar with the PERM application process should at least welcome the fact modernization of the PERM regulations is on DoL’s present agenda and is consistent with the thrust of the November 2014 memoranda by President Obama and Secretary Johnson. Sharma Law Offices will continue to monitor and report on material events relevant to DoL’s efforts in this regard.  

DHS Permits Part-Time F-2 and M-2 Study and Removes DSO Cap

In our May 29, 2015 article H-4 EAD for Certain Dependent Spouses Now in Effect, we reported on the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) new rule allowing certain H-4 dependent spouses of H-1B employees to apply for employment authorization. A stated purpose of the new H-4 EAD provision is to increase U.S. global competiveness for highly skilled workers through amelioration of disincentives, economic burdens, and personal stresses of H-1B employees and their families.

Effective May 29, 2015, the DHS also amended its regulations under the Student and Exchange Visitor Program (SEVP) to expand opportunities for spouses and children of international students to engage in a course of study. Similar to the H-4 EAD provisions mentioned above, enhancing U.S. global competitiveness for the best and brightest international students (highly skilled workers in the case of the H-4 EAD) is a basis for the May 29, 2015 SEVP amendments.

Essentially, under prior regulations, F-2 and M-2 spouses of academic or vocational students with F-1 or M-1 status were prohibited from engaging in “full time” academic or vocational studies. F-2 and M-2 children could only engage in full time study if the study was in an elementary or secondary (K-12) school.

Now, per the amended SEVP regulation, F-2 and M-2 spouses and children can enroll in less than a “full course” of study in a SEVP certified school. Less than a full course of study is typically considered study less than the 12 credit hours defining a full time course load. Full time elementary and secondary study for F-2 and M-2 children is still allowed.

In addition, under the old rule, SEVP certified schools were permitted to nominate a maximum of 10 designated school officials (DSOs) to act as liaisons between the school and the SEVP in order to ensure compliance with laws regulating international students. Now, SEVP certified schools are allowed to nominate as many DSOs deemed necessary to adequately provide services such as recommendations, record keeping, and reporting with respect to F and/or M students enrolled at the school. Again, one reason for lifting the 10 DSO cap is increased flexibility ultimately resulting in enhanced attractiveness for international students to study in the United States.  

Sharma Law Offices, a highly rated Atlanta Immigration Law Firm, actively monitors rule amendments – like those discussed above – which potentially expand rights afforded under prior regulations. We are, of course, available for consultation regarding applicability to your particular set of circumstances.

BIA decision on Priority Date Retention at Odds with Longstanding USCIS Policy

Recently, the Board of Immigration Appeals (BIA) issued a non-precedential decision – In re: Grace Estrellado – that merits attention because the result appears contrary to the U.S. Citizenship and Immigration Services’ (USCIS) policy regarding priority date retention.

More specifically, under past practice, USCIS allows a beneficiary of a new I-140 to retain the priority date from a previously approved I-140 petition after the first I-140 was withdrawn or revoked as a result of the beneficiary’s move to a new employer. An exception to this policy occurs when the original I-140 is revoked based on a government finding of fraud or willful misrepresentation. In another related scenario, USCIS allows for priority date retention occasioned by the beneficiary’s “upgrade” to a different employment based category (i.e., EB-3 to EB-2) than originally approved.

The ability to retain the priority date applicable to an earlier approved I-140 is significant because it enables the beneficiary to change positions or employers without prolonging the wait for a green card based on a later priority date applicable to more recently approved I-140 petition. In the case of an “upgrade”, EB-2 priority dates may become current sooner than the EB-3 category. Therefore, a beneficiary may obtain a green card more quickly if the priority date applicable to the previously approved I-140 (EB-3) ports to a subsequently approved 1-140 under the EB-2 classification.

Under the facts of In re: Grace Estrellado, the respondent, Grace Estrellado, was the beneficiary of an approved I-140 petition with a 2006 priority date. Ms. Estrellado subsequently obtained another job and was sponsored by the new employer for a green card. As a result, Estrellado became the beneficiary of a second approved I-140 with a 2011 priority date. Estrellado argued the 2006 priority date should apply to the new I-140 and enable her to immediately adjust status because the old priority date had since become current. However, the Immigration Judge, and the BIA on appeal, determined Estrellado was not eligible to retain the 2006 priority date because the first I-140 had been withdrawn by the earlier employer and its approval thereafter revoked. In so holding, BIA appeared to strictly apply regulations stating revoked petitions do not confer priority dates totally apart from the context of longstanding USCIS interpretation and policy allowing for (in the absence of fraud or willful misrepresentation) priority date retention in instances where the predecessor I-140 had been revoked by operation of changing employers.

It is important to emphasize In re: Grace Estrellado is a non-precedential BIA decision and, as such, is only binding as to the four corners of that particular case. Nevertheless, the holding – that the beneficiary may not utilize the priority date from her original I-140 petition because her prior employer withdrew the I-140 and its approval was thereafter revoked by USCIS – appears to ignore (or affords no weight) to prior government practice to the contrary.

The above case illustrates past government practice is not a guarantee and is – at times – subject to piecemeal and seemingly inconsistent interpretations. At Sharma Law Offices, we strive to keep current with respect to such contingencies, and likewise advise consultation with an experienced immigration attorney prior to a changing one’s employment status.

H-4 EAD for Certain Dependent Spouses Now in Effect

Effective May 26, 2015, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS), under its new final rule, began accepting applications for employment authorization for certain H-4 dependent spouses of H-1B employees who seek employment-based lawful permanent resident (LPR) status. The USCIS has accordingly amended its Instructions for I-765, Application for Employment Authorization, and corresponding I-765 application form (revision date February 13, 2015), to incorporate the new regulation.

Under prior regulations, H-4 spouses were not eligible for employment authorization. Now,  under the new rule, H-4 spouses are eligible for employment authorization documents (EADs) if the H-1B employee is the principal beneficiary of an approved Immigrant Petition for Alien Worker (I-140) or the H-1B employee received an extension beyond the six year H-1B maximum via a Permanent Labor Certification Application (PERM) filed at least 365 days prior to expiration of the 6 year limitation or if the H-1B’s preference category does not require a PERM, and he or she filed a currently pending I-140 at least 365 days prior to the 6 year expiration date.     

In a news alert on May 20, 2015, NewsAlert! H-4 EAD FAQ’s released, we announced the USCIS updated its webpage with eligibility requirements, filing guidance, and frequently asked questions (FAQs) with respect to its new H-4 employment authorization rule. Here, we will provide an overview of some of the more effectual aspects of USCIS’ FAQs/guidance as follows:

  • Filing for an H-4 EAD is not a one time opportunity. One may file after May 26, 2015, and may file to renew as long as eligible;
  • There is no cap on the number of I-765 (H-4 EAD) applications;
  • 90 days is the expected processing time for H-4 EAD applications;
  • Presently, H-4 EAD applications are only accepted in paper form (i.e., no electronic filing) and premium processing is not available;
  • In order to apply, one must be currently in valid H-4 status. An individual outside the U.S. cannot be in H-4 status. Therefore, one must be physically present in the U.S. to apply for an H-4 EAD;
  • If approved, the H-4 EAD expiration date will generally match the H-4 status expiration date;
  • Initial H-1B and H-4 petitions/applications may be filed concurrently with an initial H-4 EAD application – however, the 90 day clock for the H-4 EAD application will not begin until a decision on the underlying H-1B and H-4 applications;
  • H-1B and H-4 extension of stay applications (I-539 Application to Extend/Change Nonimmigrant Status) may be filed concurrently with an H-4 EAD application – however, if a previously filed I-539 is pending – USCIS recommends waiting until the pending I-539 is decided until filing an H-4 EAD application in the first instance;
  • Both the H-4 EAD applicant spouse and the H-1B spouse must maintain status for H-4 EAD eligibility – therefore, absent extensions of stay, H-4 spouses are not initially eligible for an EAD if USCIS revoked the H-1B’s I-140 petition;
  • It is not necessary for the H-1B spouse’s approved I-140 to have been filed by his or her current employer in order for the H-4 spouse to be eligible for employment authorization;
  • USCIS retains discretion to revoke an H-4 EAD if the H-1B spouse subsequently loses an approved I-140 or is otherwise no longer eligible for H-1B status;
  • The H-4 EAD authorized under the new rule is “unrestricted” and, as such – is not limited to a specific employer, allows self-employment and starting one’s own business, and the H-4 spouse and/or business may employ other people;
  • Travel abroad is permitted for an H-4 EAD applicant who is in valid H-4 status – but the applicant remains responsible for timely providing USCIS additional evidence or responding to notices associated with the application while out of the country;
  • If not in current valid H-4 status, such as when an H-4 EAD application and I-539 are filed concurrently requesting a change to H-4 status – travel abroad results in abandonment of the I-539 and therefore denial of the companion H-4 EAD application; and
  • An H-4 EAD is not a travel document – if traveling abroad, individuals need separate travel documents such as a passport and H-4 visa to return to the United States.

The above is a synopsis of some of the operative USCIS FAQs with respect to the newly implemented H-4 EAD regulation. We condense and summarize them here as a service to our readers. It is not intended as legal advice. The USCIS’ interpretations as to how it administers the new H-4 EAD rule and attendant application process may also evolve over time. We at Sharma Law Offices, LLC, stand ready to assist you with any questions you may have regarding your particular set of circumstances.