Q. I entered the United States in January 2015 on an H-4 visa. Subsequent to my entry, I was subject to extreme emotional abuse by my H-1B spouse. I am considering filing for divorce, but have serious reservations because I cannot financially support myself. I would like to work here. My husband has not started his green card process. Can I work legally in the U.S.A?
A. According to a recent USCIS policy memo dated March 8, 2016, certain battered spouses of H-1B workers may be able to apply for employment authorization. Pursuant to section 106 of the Immigration Act, a battered spouse may apply for an employment authorization document (EAD) by producing evidence of abuse. You can include police reports, medical records, photographs of any injuries, psychological evaluations, statements by credible witnesses, such as friends, neighbors, and family members. You can apply for the H-4 EAD even if your marriage to your H-1B has been terminated as long as you filed your EAD application within two years. If you re-marry prior to the approval of your EAD, you will no longer be eligible for employment authorization.
Q. I recently graduated with a Bachelor’s degree in Engineering and understand that in addition to the 12 months of work authorization, I can also obtain work authorization for an increased duration. Please confirm.
A. On March 9, 2016, the DHS published the final version of the new STEM OPT ruling. In essence, the DHS increased the duration of STEM OPT from 17 months to 24 months. It is important to note that this only applies to individuals who have a qualifying STEM degree from an accredited school. One critical change is a requirement for an employer to show that it has a formal training program that is consistent with the employee’s degree. The requirements are extensive, and site visits will be conducted to verify compliance.
Q. I am on an F-1 student visa and recently my employer submitted my H-1B petition. I need to travel to India while my petition is pending.
A. It is very important to note that when you apply for your change of status (COS) to H-1B and if you travel abroad while your petition is pending, USCIS will consider your request for COS as abandoned, and will deny your request for COS.
Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.