Tuesday, December 31, 2013

Employment Authorization for E-2 Spouses does not require EAD

In an unpublished decision, the Board of Immigration Appeals reversed the immigration judge's denial of an adjustment of status application for unauthorized employment under INA 245(c).  The Board found that the E-2 dependent spouse did not engage in unauthorized employment.  

The Board found that INA §214(e)(6) of the Act, 8 U.S. C. § 1184(e)(6), provides that in the case of an E-2 dependent spouse who accompanies or follows to join the E-2 principal alien the "Attorney General shall authorize the alien spouse to engage in employment and provide the spouse with an "employment authorized" endorsement or other appropriate work permit (Emphasis added). 

The Board ruled that the DHS employment authorization regulation, 8 C.F.R. § 274a.12(c)(2), entitled "Aliens who must apply for employment authorization," provides that an alien spouse or unmarried dependent son or daughter of a nonimmigrant treaty trader (E-1) must apply for work authorization. However, the regulation does not specifically state that the spouse of a treaty investor (E-2) must do the same.   Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013).

Wednesday, December 18, 2013

Employers Should Make H-1B Plans Now; The New Filing Season Starts April 1, 2014

The Miller Law Offices provide their ten best planning tips for employers and employees, in advance of the April 1, 2014 USCIS H-1B filing season.

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs each year. The first date that H-1B petitions will be accepted by the USCIS for employer filing for October 1, 2014 employment is April 1, 2014.

Last year, U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.  

Because USCIS received approximately 124,000 H-1B petitions during the filing period, the agency used a computer-generated random selection process or “lottery” to select petitions to meet the 65,000 cap for the general category and the 20,000 cap under the advanced degree exemption limit.
It is likely that the low cap numbers will be not be sufficient for this year's volume demand and that the cap will close quickly as it did last year.

To maximize your chances for H-1B employment authorization, your company should consider the following ten tips:

1. Use an immigration lawyer with experience in successful H-1B filing.

2. U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers. There is also competition for those additional numbers as that cap was also quickly reached last year.

3. Professionals from Chile or Singapore are given extra numbers, which are unlikely to be used up. Those H-1B1 petitions need special filing treatment and allow specialty professional jobs for qualified persons who have the threshold bachelors’ degrees.

4. Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers. TNs are now eligible for a three year admission, providing flexibility for employers’ long-term employment strategy of the North American foreign professionals.

5. Australian professionals are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap.

6. The O-1 category for aliens of extraordinary ability is a non-cap alternative for persons who have reached the highest level of accomplishment in their fields.

7. DHS now allows a 17 month extension of optional practical training from 12 to 29 months for F-1 students who major in specified science, technology, engineering and mathematics (STEM) SEVIS authorized programs. The accepted employment must be with employers enrolled and considered by the CIS to be in good standing in the E-Verify program. The successful STEM OPT extension, with the approval of the school’s DSO and the proper and timely filing of the extension, may represent a bridge to an opportunity for the unsuccessful applicant’s next opportunity for successful H-1B petition.

8. A qualified institution of higher education or research non-profit organization is exempt from the H-1B cap and can sponsor a H-1B visa at any time of the year.  If your employer an institution of higher education; related or affiliated to a higher education institution nonprofit entity, or a nonprofit research organization or a governmental research organization, you may expect favorable exempt treatment for your H-1B petitions.

9. Duration of status and any post-completion OPT work authorization is automatically extended for an F-1 student who is the beneficiary of a timely-filed H-1B petition requesting change of status and an employment start date of October 1, 2014.

10. Some foreign-based and educated persons will qualify for up to 18 months employment in qualified training programs through J-1 sponsorship.

For further information about the Miller Law Offices immigration benefit legal services, please contact Charles Miller or Terri Miller at (818) 508-9005 or direct your E-mail to Charles Miller