DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence

h4 EAD Spouses

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

Finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” Rodríguez said. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries 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 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

For more information on USCIS and its programs or about this rule and filing procedures, please visit uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

PRACTICE POINTERS FOR ONE PARENT SIJS MATTERS IN NEW JERSEY POST HSP

The recent wave of Central and South American unaccompanied minors illegally crossing our southern border is heartbreaking. Many of us are aware that these are not opportunists, as some would suggest, but mere children running for their lives and trying to escape what is truly the greatest humanitarian crisis the western hemisphere has seen in ages. Only a few of us are aware, however, that due to a recent New Jersey Appellate Court decision, on its way to review by the New Jersey Supreme Court, HSP v. JK, 435 N.J. Super. 147 (App. Div. Mar. 27, 2014), cert. granted (July 28, 2014), New Jersey is among the most difficult venues in the United States for unaccompanied minors who have been placed here and are seeking Special Immigrant Juvenile Status (SIJS) based on abuse, neglect or abandonment by one parent.

I recently represented one of these children in New Jersey and was able to obtain the required predicate order with a best interests finding from the family court. In this article, I would like to briefly share with you some practice tips for overcoming the obstacles created by HSP in one parent SIJS matters so that you too may be successful in representing a child in need.

Be prepared, the family law judge will appreciate it. All of us need education in this area right now. The immigration laws are very complex and the SIJS statute is a very unique intersection between family law and immigration law. Most family court judges will not be familiar enough with all the nuances of the SIJS statute, relevant case law and agency positions to make educated decisions. A clear and thorough presentation of the critical, but limited, role of the family courts and relevant case law will make it easier for the family court judge to distinguish and understand the issues and decide the matter.

Be thoroughly familiar with your client’s facts. There should have been a record created from the day your client was first apprehended. Review the Office of Refugee Resettlement materials, immigration court documents and personally interview your client. Be very mindful that they are children and perceive things very differently from adults. Veracity and consistency throughout the proceedings will help you prevail.

Study HSP. This cannot be overstated. Read it over and over again. Understand exactly what it is saying and how it should be viewed by as a narrow holding. For example, the HSP decision was based on a specific set of facts that may well be very distinguishable from your case. Distinguishing the facts in HSP to the facts in your matter is critical in providing the family court with the basis to reach a different outcome than the HSP court.

Thoroughly research all legal issues surrounding your particular matter. Start with the cases and statutes cited in HSP and expand your research from there. Review what is being submitted to the Supreme Court on HSP and use those arguments as well. They are very cogent and include plain language, legislative intent, federal agency interpretation and weight of authority arguments.

Brief your positions for the court. Unless you are some kind of extraordinary orator/litigator, HSP and the interplay between the family laws and immigrations laws at issue are way too complicated to explain verbally in a courtroom. Start with a concise but detailed written outline of all the legal issues in your matter (making this your table of contents) and expand from there in a written brief for the court to deliberate on outside the hustle and bustle of the courtroom. Offer it to the court, following your initial submission, at your first hearing or, better yet, consolidate all of your HSP-distinguishing arguments into your initial motion for custody and special findings, if you can.

Prepare a rock solid proposed order for the family court judge to sign. List all of the statutory requirements but avoid using the controversial “one or both” language at issue in HSP. If it is a one parent SIJS, state it loud and clear in your order. Inform the court that you are not asking it to interpret the meaning of “one or both” but simply to issue an order stating that one parent has abused, abandoned or neglected your client. Explain to the court also that HSP does not prohibit issuance of a best interests finding in any circumstance. In HSP, the Appellate Division merely held that the trial court did not err in not issuing best interests findings in that matter and nothing more.

If you are thinking about handling SIJS cases in New Jersey, I strongly suggest that you do so, as the work can be very personally rewarding from a humanitarian perspective.

If you have questions, please contact me at 732-946-2497 or email me at teresa@grawesq.com.

© Teresa M. Graw, LLC