Latest On IMMIGRATION TOPICS

By: Robert Gard

 

New Regulations Announced That Will Provide Employment Authorization Availability to SOME H-4 Dependent Spouses (Spouses of H-1B Beneficiaries)

Several years ago, USCIS issued regulations that allowed dependent spouses in E-1/E-2 and L-2 nonimmigrant status to apply for an employment authorization document (EAD). Dependent spouses of H-1B visa holders (H-4s) were disappointed that they were not also allowed access to an EAD while their spouses were lawfully employed in H-1B status in the U.S., sometimes for many years.

The Obama Administration announced in May of 2014, that they were looking into a fair and balanced resolution of this issue, and on February 24, 2015, USCIS published (as a 30 page “Final Rule”, effective May 26, 2015) rules allowing certain H-4 spouses (required to meet certain criteria, other than simply being an H-4 dependent spouse) of H-1B non-immigrants to receive employment authorization documents. The rule applies only to H-4 spouses, not minor children, and, for the H-4 spouse to qualify for an EAD, the H-1B “principal” beneficiary must meet one of the following two tests: — Be the beneficiary of an approved Form I-140 Immigrant Petition for Alien Worker; or — Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

On and after May 26, 2015, qualifying H-4 spouses may apply for an EAD by filing USCIS form I-765 (filing fee is currently $380), and the I-765 should be processed and adjudicated within about 60 to 90 days, if filed as a “stand alone” application, and not in conjunction with any other application, such as an I-539 Application to change to or extend H-4 status (which would need to be adjudicated before the I-765 application.)

Employment authorization provisions for H-4 spouses of other “H-type” visa holders (such as H- 1B1, H-2, H-3) are NOT included in this rule. Once granted, an H-4’s EAD is NOT automatically extended if a new I-765 is filed before the expiration of the existing EAD, and a new EAD must be issued to continue employment authorization. For that reason, it’s important to file for renewals early (I-765 applications for a renewal/extension of employment authorization are accepted by USCIS up to 180 days in advance of EAD expiration.) President Obama’s Executive Actions — Status of Implementation & Political Infighting — Part 2

Two key pieces (expanded “DACA” without age limits and “DAPA”) of President Obama’s Executive Actions Program, announced on November 20, 2014, were or are scheduled to go into effect on February 18th and May 26th of this year, respectively; but legal and political hurdles to implementation remain. On November 20, 2014, President Obama announced his “immigration accountability executive action,” which includes a series of measures that are first steps towards common-sense reforms to an outdated immigration system. The series of executive actions presented by the administration range from new temporary immigration protections for many unauthorized parents of U.S. citizens and lawful permanent residents to highly technical regulatory proposals to fix outdated visa provisions.

The USCIS website has a DACA page/link, where the public can sign up for emailed instructions, updates and further developments: http://www.uscis.gov/immigrationact ion

Status of Implementation and Political Infighting:

Republicans have vowed to fight Obama’s immigration plan, charging the president overstepped his constitutional powers in taking the executive action. More than half of the States have sued the President, and they strategically “forum shopped” for a Federal District Court and a Federal District Judge who would be most likely to favor their position; settling on the Southern District of Texas, Brownsville Division, and Judge Andrew S. Hanen (appointed to the Federal Bench in 2002 by President George W. Bush).

As of the date of my last article, Judge Hanen had not yet issued his expected ruling, however, that 123 page decision was issued shortly thereafter, around midnight of February 16th, putting in place a preliminary injunction temporarily blocking implementation of President Obama’s new deferred action initiatives (expanded DACA and DAPA), while pointedly leaving the original 2012 version of DACA untouched and undisturbed. Judge Hanen indicated that his preliminary injunction was for the purpose of providing time for a coalition of 26 states to pursue a lawsuit seeking a permanent injunction against the President’s new deferred action initiatives.

On February 20th, The Obama Administration announced that the US Department of Justice would immediately file a request for an emergency stay of Judge Hanen’s ruling that blocked expansion of DACA and the initiation of the DAPA program. USCIS had been prepared to issue a new form I-821D on February 17th to be used for applications under the expanded DACA program, but have now withheld release of that new form (instructions for completing the form have been released and may be found at USCIS website.)

An appeal of Judge Hanen’s order has also been filed with the 5th Circuit Court of Appeals (sitting in New Orleans.) Judge Hanen will be first to consider the emergency stay, but the Department of Justice said in its filing that it may seek relief from the Fifth Circuit Court of Appeals if the judge does not issue a ruling by Wednesday, February 25. Alternatively, the government requested a narrower stay of the injunction so that it only suspends the implementation of the new initiatives in Texas. Given the immediacy of harm to the government and the public in the absence of a stay, the Justice Department has requested expedited consideration.

On the political front, Congress is attempting to use the continued funding of the US Department of Homeland Security (DHS) to stop the President’s immigration initiatives, with funding scheduled to run out on Friday, February 27th.

The House has passed (by a “party line” vote) a bill to continue funding DHS that strips funding for purposes of implementing the President’s deferred action initiatives. The Senate has been unable to pass the same bill due to a filibuster by the minority party. To break the logjam, Senate leadership from both parties have agreed to a “de-coupling” of funding for the Department of Homeland Security from legislative action against Obama on deportations. If this passes, then the ball returns to the court of Speaker of the House, John Boehner, who faces open revolt from his own party if he goes along with the plan passed in the Senate.

A very interesting “conservative” theory has been advanced that would provide an exit ramp from the crazy loop that the Republican Party has entered. President Obama’s deferred action initiatives (expanded DACA and DAPA) should be understood as sensible measures to move power out of the hands of unaccountable civil servants (ICE and USCIS union officials), and return it to democratically elected officials. They are justifiable efforts to prevent a public sector union from hijacking public policy. Stay tuned folks, this could get real interesting!

QUICK NOTES:

Just a friendly reminder, Dear Readers, you should review and clean up (delete/scrub) any and all embarrassing, incriminating, contradictory, or otherwise strange postings/ photos on ALL of your “social media” account pages BEFORE you file any application or petition with USCIS or file any immigrant or nonimmigrant visa application with any US Department of State consular post.

USCIS and Consular Officials DO look at these pages when they are considering your application or petition, and you would be surprised at the number of denials (or worse) that result from “information” gleaned from these social media sites. Additionally, please note that “delete” doesn’t always actually delete, so it’s best that your social media accounts never contain damaging information.

What would it cost to deport/remove all 5 million potential beneficiaries of President Obama’s 11/20/2014 deferred action initiatives? The Center for American Progress has provided an answer to that question: https://www.americanprogress.org/is sues/immigration/news/2015/02/23/1 06983/what-would-it-cost-to-deportall- 5-million-beneficiaries-of-executive- action-on-immigration/ Put simply, it would cost more than $50.3 billion dollars to deport this entire population—an average cost of $10,070 per person. I believe that is a very conservative estimate, as I’ve seen credible analyses breaking down the costs of removal to approximately $50,000 per person. COPYRIGHT BY AUTHOR — 2015

This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published and distributed with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. It is submitted for publication by the author with the understanding that each individual case is different, and this article is not a formal legal opinion and should not be relied upon as advice by the author in a particular legal situation.

Mr. Gard has been engaged in the practice of immigration law since 1977. He is a frequent writer and lecturer in the American Immigration Lawyers Association and has served that professional organization as a Chapter Chair of the Greater Chicago Chapter, and as a Director. Written questions may be submitted to Mr. Gard. At his discretion, selected questions or issues may be addressed in subsequent articles.

Mr. Gard is available for appointments for consultation in immigration law-related matters at the law offices of Immigration Attorneys, LLP, 203 North LaSalle Street, Suite# 1550, Chicago, Illinois 60601, Contact Information (email is the preferred method of contact): e-mail: rgard@immattyllp.com Telephone: (312) 661-9100 ext. 8943; FAX: (312) 661-9021; Our firm has several multi-lingual lawyers engaged in the practice of immigration law, and also has lawyers available for criminal and civil litigation and health care facility/ medical practice and licensing issues. The firm also has offices in Milwaukee (WI), Tampa (FL), and Phoenix (AZ).