Tag Archives: H-1B

H4-EAD Back on Track!

There’s great news ahead for people who lost the right to work when their H4 visa work permits were revoked by the Department of Homeland Security (DHS) in 2017.

On Tuesday, January 26, the Biden administration rolled back a Trump-era ban that prevented H4-EAD visa holders – many of them women of color – from working  in the US.

The DHS withdrew its proposal to rescind H‑4 work authorizations which means more than 100,000 H‑4 EAD recipients will keep their right to work.

The work permit, originally introduced by the Obama administration, was issued by the US Citizenship and Immigration Services (USCIS) to immediate family members (spouses and children under 21 years of age) of H-1B visa holders,  many of whom hold tech sector jobs.

The provision allowed dependent spouses to work, so families awaiting a transition to permanent residency did not have to struggle to survive on a single income.

The USCIS reported that 98% of H4 visa holders were from Asian countries – with 93% of approved applications for H-4 employment authorization issued to individuals of Indian origin, many of whom are highly skilled women in STEM professions.

When the EAD was revoked under the Trump administration it disenfranchised women from the South Asian community and put them at at-risk. Immigration advocates reported that losing the H-4 status had a negative impact on the health and wellbeing of dependent spouses (overwhelmingly women).

Opponents said the rescission was forcing women into a cycle of dependency and depression. In online support groups women reported mental health issues, marital problems and domestic abuse from the loss of financial security, as seen in this video testimonial from a community member called Neha.

 

Immigration advocacy group SAALT reports that despite the hopeful news, it “continues to hear from community members who have been adversely impacted by significant delays in the processing of H‑4 work authorization documents.”

“These people must be protected, and the Biden administration must unilaterally extend the validity period of all expired H‑4 EADs and resolve USCIS processing delays,” SAALT added in their statement.

According to congresswoman Bonnie Watson Coleman, the “months-long backlog created by changes made during the Trump Administration have created economic challenges for women, their families, and the communities in which they live.”

A letter signed by 60 members of Congress in December 2020 to then president-elect Biden, urged the immediate extension of H‑4 EAD expiration dates.

“We respectfully request that the Department of Homeland Security publish a Federal Register notice on day one of your administration that would extend the validity period of all expired H4 EADs,” the members of Congress wrote. “In 2015…the Department of Homeland Security (DHS) issued a rule allowing certain H4 dependent spouses of H-1B visa holders to legally seek employment in the US. This rule presented an important step towards rectifying gender disparities in our immigration system, as around 95% of H4 visa holders who have secured work authorizations are women. Before the rule was granted, many women on H4 visas described depression and isolation in moving to a new country and not being allowed to work outside of the home. Unfortunately, these women are losing and will continue to lose their jobs until this is put right, disrupting the lives of their families and the functioning of employers in our districts.”

It’s hoped these extensions will be included in the U.S. Citizenship Act of 2021, in which President Biden has pledged to reform U.S. immigration and “restore humanity and American values to our immigration system.”

The bill plans a sweeping policy and regulatory overhaul to modernize a broken U.S. immigration system that will cover formalizing H-4EAD work authorizations, creating pathways to citizenship for undocumented individuals, essential workers  and individuals with temporary status, and resolving backlogs to increase the efficiency of employment-based immigrant processes.

SAALT said the move to preserve the program “signals the Biden-Harris administration’s commitment to supporting immigrant women workers who play an essential role as we continue to battle the COVID-19 pandemic. They called it  “a long overdue moment of hope for immigration policy.”


Meera Kymal is the Contributing Editor at India Currents
video clip: courtesy SAALT
Photo by ThisisEngineering RAEng on Unsplash

EB-5: The Best (and Only?) Option for Many Indian Nationals

It is not easy being a citizen of India who wants to live and work in the U.S. with plans to become a permanent resident or U.S. citizen. Indian nationals face a coordinated series of hurdles and roadblocks.

Both OPT and H-1B are under attack. If a foreign national is lucky enough to be selected in the H-1B lottery, new adjudication interpretations are making it even more difficult to get H-1B petitions approved. If approved, extensions are not assured since USCIS has now stated it will give no deference to its previous approval. There are also plans to remove the regulation allowing certain H-4 spouses of H-1B visa holders to work in the U.S.

If an employer sponsors a successful labor certification application, the Indian national will then go into the EB-2 or EB-3 quota. A conservative estimate for how long that wait will be is 15 to 20 years or more. During that time, he cannot leave his employer or be promoted. Even the very restrictive EB-1 (extraordinary ability) category has recently become subject to a lengthy quota backlog.

This leaves one opportunity for the Indian national seeking to obtain permanent resident status in the reasonably near future: EB-5. While the minimum $500,000 investment amount means it is certainly not an option for all, it is for some – – either through their own means or through gifts. EB-5 allows the Indian citizen flexibility in his employment, including the ability to be promoted or to switch employers without affecting his green card application.

On September 12, NES Financial will be hosting an informational webinar called “H-1B to EB-5: Stay Permanently, Work Anywhere” to educate those interested in learning the requirements, process, and realistic timeline to obtain a green card through the EB-5 program. The speakers will discuss how to avoid the pitfalls of the program and how to identify good EB-5 investments. Speakers will include top-level executives from EB-5 industry-leading companies: NES Financial, Klasko Immigration Law Partners, and CanAm Enterprises. To register, please click here.

https://www.eventbrite.com/e/h-1b-to-eb-5-visa-seminar-stay-permanently-work-anywhere-tickets-48290269496?aff=IndiaCurrents

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F-1, H-4, and H-1B Cap-Gap

Q. I am currently in the United States on an F-1 (Student Visa). While I am studying, I am interested in a volunteer position that is related to my field of study. Can I legally take this position?

A.No, volunteering while you are on an F-1 status is not allowed. Your employer (or the entity) for whom you are volunteering is required to pay your wages and even if you are not paid, you will be in violation of your status. You cannot work without explicit work authorization.

Q.I am currently in the United States on an H-4 status. When my husband’s employer extended his H-1B status, I did not receive an extension for my H-4 status. I was under the impression that my status is automatically extended when my husband’s H-1B is extended. My I-94 expired 3 months ago. What do I do?

A. It is important to note that there is no automatic H-4 extension. You have two options: you can file a request with the USCIS (called nunc pro tunc) requesting an extension of your status even though you are late and out of status. Your other option is to step out before you accumulate 180 days of unlawful presence. This way you can apply for a new H-4 visa at the US consulate in your home country and still be able to return to the United States without any legal issues. If you decide to apply for your extension in the USA, even though your status has expired, you must show that your
i) Failure to file was due to extraordinary circumstances
ii) The extraordinary circumstances were beyond your control
iii) Your explanation must be reasonable in the context of what happened
iv) You have not otherwise violated your status
v) You must not be in removal/deportation proceedings
It is important to consult an experienced attorney if you decide to take this chance because if your application with the USCIS is denied, you may accumulate 180 days of unlawful presence and would be subject to a 3-year bar upon leaving the US.

Q. Can I travel during the H-1B Cap-Gap?

A. If you have cap-gap relief and you decide to travel outside the United States, you will not be able to return until the last 10 days in September, assuming that you have secured your H-1B visa.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.