13
Jun 2017
file0002022362803

The United States Citizenship and Immigration Service (USCIS) has recently adopted a decision, clarifying when an applicant qualifies for the H-1B numerical cap exemption. Currently, USCIS is permitted to approve 65,000 H-1B petitions per year, granting temporary nonimmigrant visas for specialty occupations. In addition to this allotted amount, 20,000 H-1B visas can be approved should they fall under the H-1B numerical cap exemption. Under the exemption, applicants can still qualify for the H-1B visa after meeting certain requirements.

 

Matter of A-T-Inc Decision

 

If an applicant for an H-1B visa has obtained a Masters’ degree from an accredited college or university, he or she may apply using their degree as the basis for their H-1B petition. Until recently, there was still some confusion as to when the accreditation of the institute is considered. In the Matter of A-T-Inc, the applicant graduated from a university that received its accreditation some time after the degree had been conferred. The Court confirmed in its opinion that for an individual to qualify for an H-1B exemption based upon a master’s or higher degree, the conferring institution must have qualified as a “United States institution of higher education” at the time the beneficiary’s degree was earned. An institution is deemed qualified when it has been “accredited by a nationally recognized accrediting agency or association” or “granted preaccreditation status.” The institute’s accreditation or preaccreditation status will be determined at the time the degree was conferred, not when the petition is undergoing the adjudication process.

 

Keeping The H-1B Visa Exemption Exclusive

 

There are two reasons why the Court ruled in this light. First, requiring the school to meet accreditation/ preaccreditation standards ensures the quality of the education necessary to merit a Master’s Cap exemption. It is important to preserve the exclusivity of this exemption to those who have graduated from an institution meeting such high standards. Second, it would be unfair to evaluate the school’s accreditation at the time of adjudication. Applicants could miss out on the opportunity to file under the H-1B exemption if their school has since (the applicant’s degree conferment) lost its accreditation status. In other scenarios, the exemption would no longer be exclusive because it would fail to screen out those who have received higher learning degrees, but had a lower education quality compared to an individual having graduated from an accredited university. For these reasons, the date on the degree and the date the institution received accreditation are critical in determining one’s ability to petition under the H-1B numerical cap exemption.

 

Checking School Accreditation

 

There are a few ways to check whether your institution has met accreditation standards. Contact your institution or visit them online to receive more information on its accreditation status. Most of the time schools will have it posted online, but if not try giving the administration office a call. You can also visit the United States Department of Education website where you can use its built-in search option to do further research on your school.

BrianJohnson_Logo_Black-01 tbls1-immigrationandnationalitylaw location-san-diego

We serve the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

16
May 2017
file000315021003

If you receive a phone call that appears to come from the Canadian government’s Immigration, Refugee, and Citizenship Canada (IRCC) Call Centre (1-888-242-2100), hang up! Scammers are altering their caller IDs to appear as if they are calling from the IRCC Call Centre. The scammers tell people that their names and identities are under federal investigation. Sometimes they tell individuals that there is a legal case, an affidavit, and/or allegations against them.

 

If you receive a call demanding personal information or payment, hang up immediately. If you want to check the status of your case, you may:

  • Make an InfoPass appointment at http://infopass.uscis.gov;
  • Use myUSCIS to find up-to-date information about your application; or
  • Call our National Customer Service Center at 800-375-5283 to ask if you need to do anything about your case or immigration status.

Remember, USCIS officials will never threaten you or ask for payment over the phone or in an email. Do not give payment over the phone to anyone who claims to be a USCIS official. All requests for official payments will arrive on government stationery. In general, we encourage you to protect your personal information and not provide details about your immigration case in any public area.

 

If you receive a scam email or phone call, report it to the Federal Trade Commission at http://1.usa.gov/1suOHSS. If you are not sure if it is a scam, forward the suspicious email to the USCIS webmaster at uscis.webmaster@uscis.dhs.gov. USCIS will review the emails received and share with law enforcement agencies as appropriate.

 

Visit the Avoid Scams Initiative at www.uscis.gov/avoid-scams for more information on common scams and other important tips.

 

BrianJohnson_Logo_Black-01 tbls1-immigrationandnationalitylaw location-san-diego

We serve the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

09
May 2017
file0001989720291

According to the State Department’s June Visa Bulletin, the priority date cutoff for EB-1 India and China has been set at January 1, 2012.

Final action cutoff dates for EB-2 will advance by over a week for India, to July 1, 2008, and by three weeks for China, to March 1, 2013.

In the EB-3 category, final action cutoff dates for professionals, skilled workers and other workers will advance by seven weeks for India, to May 15, 2005; by four months for the Philippines, to May 1, 2013; and by one month for all other countries except China, to April 15, 2017. EB-3 China will remain unchanged at October 1, 2014.

In the coming days, USCIS is expected to announce on its own Visa Bulletin web page whether it will accept adjustment of status applications from foreign nationals with a priority date that is current for filing eligibility in June.

Employment-Based Immigrant Visa Availability in the Coming Months

EB-1 India and China are expected to remain backlogged through the remainder of this fiscal year and be available again in October 2018.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.

We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the June 2017 Visa Bulletin.

 

Visa Bulletin For June 2017

Number 6
Volume X
Washington, D.C

View as Printer Friendly PDF

 

A. STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers during June for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin.

1.  Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by May 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The final action date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

A.  FINAL ACTION DATES FOR FAMILY-SPONSORED
PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Family-
Sponsored 
All Chargeability
Areas Except
Those Listed
CHINA-mainland
born
INDIA MEXICO PHILIPPINES 
F1 22DEC10 22DEC10 22DEC10 01SEP95 22APR06
F2A 15AUG15 15AUG15 15AUG15 22JUL15 15AUG15
F2B 22OCT10 22OCT10 22OCT10 08APR96 22SEP06
F3 01JUL05 01JUL05 01JUL05 22FEB95 08OCT94
F4 08MAY04 08MAY04 15SEP03 15JUL97 22NOV93
22MAR05
22MAR05

*NOTE: For June, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 22JUL15. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22JUL15 and earlier than 15AUG15. All F2A numbers provided for MEXICO are exempt from the per-country limit.

B.  DATES FOR FILING FAMILY-SPONSORED
VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS.

Family-
Sponsored 
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO PHILIPPINES 
F1 22JUL11 22JUL11 22JUL11 01APR96 08SEP07
F2A 08APR16 08APR16 08APR16 08APR16 08APR16
F2B 01SEP11 01SEP11 01SEP11 08AUG96 22JUL07
F3 01DEC05 01DEC05 01DEC05 01MAY95 01FEB95
F4 15NOV04 15NOV04 22JUN04 08JAN98 08FEB95

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A.  FINAL ACTION DATES FOR EMPLOYMENT-BASED
PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Employ-
ment
based
All Charge-
ability
Areas Except
Those Listed
CHINA-
mainland
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA MEXICO PHILIPPINES
1st C 01JAN12 C 01JAN12 C C
2nd C 01MAR13 C 01JUL08 C C
3rd 15APR17 01OCT14 15APR17 15MAY05 15APR17 01MAY13
Other Workers 15APR17 15JUL06 15APR17 15MAY05 15APR17 01MAY13
4th C C 15JUL15 C 15JUL15 C
Certain Religious Workers C C 15JUL15 C 15JUL15 C
5th
Non-Regional
Center
(C5 and T5)
C 08JUN14 C C C C
5th
Regional
Center
(I5 and R5)
C 08JUN14 C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B.  DATES FOR FILING OF EMPLOYMENT-BASED
VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS.

Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO  PHILIPPINES 
1st C C C C C
2nd C 01OCT13 01FEB09 C C
3rd C 01SEP15 22APR06 C 01JUL14
Other Workers C 01JUN08 22APR06 C 01JUL14
4th C C C C C
Certain Religious Workers C C C C C
5th
Non-Regional
Center
(C5 and T5)
C 01SEP14 C C C
5th
Regional
Center
(I5 and R5)
C 01SEP14 C C C

6.  The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on final action dates for the following month.

 

 

BrianJohnson_Logo_Black-01 tbls1-immigrationandnationalitylaw location-san-diego

We serve the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

09
May 2017
Fireworks

The visa bulletin for June was just posted online and the F1 preference for Mexico (final action chart) jumps from 6/15/1995 in May to 9/5/1995 in June.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.

We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the June 2017 Visa Bulletin.

BrianJohnson_Logo_Black-01 tbls1-immigrationandnationalitylaw location-san-diego

We serve the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

08
May 2017
happy_violinist

USCIS announced on May 3, 2017, that data entry for FY2018 has been completed and that petitions not selected in the lottery would begin to be returned. However, it may take several weeks for all unselected petitions to be returned. In the interim, for those cases where neither a receipt nor a rejection notice has been received, students may continue to benefit from an automatic cap-gap extension until a rejection notice is received. Once such a notice is received, a student has the standard 60-day grace period starting from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

For more information, see 8 CFR §214.2(f)(5)(vi). See also USCIS’s webpage, Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations.

BrianJohnson_Logo_Black-01 tbls1-immigrationandnationalitylaw location-san-diego

We serve the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

04
May 2017
file000701776753

USCIS announced on May 3, 2017, that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS is unable to provide a definite time frame for returning these petitions. USCIS asks petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.

Additionally, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition.

As previously announced on March 3, USCIS has temporarily suspended premium processing for all H-1B petitions, including cap-subject petitions, for up to six months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification.

 

 

BrianJohnson_Logo_Black-01 tbls1-immigrationandnationalitylaw location-san-diego

We serve the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

28
Apr 2017
green cards

On April 19, U.S. Citizenship and Immigration Services (USCIS) announced it was redesigning the Permanent Resident Card (also known as a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.

These redesigns use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the cards currently in use.

The new card designs demonstrate USCIS’ commitment to taking proactive approaches against the threat of document tampering, counterfeiting, and fraud. They are also part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.

The Redesigned Cards

The new Green Cards and EADs will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
    • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
    • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format, as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Both the new and existing versions of the Green Card and EAD are acceptable for Form I-9, Employment Eligibility Verification and E-Verify. Some older Green Cards do not have an expiration date. These older Green Cards without an expiration date also remain valid. Read USCIS News Release to learn more.

 

BrianJohnson_Logo_Black-01 tbls1-immigrationandnationalitylaw location-san-diego

 

26
Apr 2017
file2801302980272

On May 26, 2015, USCIS began accepting I-765 Applications for Employment Authorization for certain H-4 spouses of H-1B nonimmigrants, where:

1. The H-1B spouse is the principal beneficiary of an approved Form I-140, Petition for Alien Worker; or

2. The H-1B spouse has been granted 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 (AC21). See 80 Fed. Reg. 10284 (Feb. 25, 2015)

While this was welcome news for the families of foreign nationals in backlogged visa categories, the process for obtaining an H-4 EAD has been a source of confusion.

The Basics

 

H-4 EADs are filed under the (c)(26) category. A properly filed H-4 EAD application will include the following: See USCIS Posts Webpage on Employment Authorization for Certain H-4 Dependent Spouses;

1. Evidence of H-4 status:

a. A concurrently filed Form I-539 application for H-4 status;

b. A copy of the applicant’s most recent I-797 Notice of Action documenting a Form I-539 application to extend or change to H-4 status; or

c. A copy of an I-94 documenting H-4 status.

2. A copy of the applicant’s government issued photo I.D.:

a. A valid EAD;

b. A passport biometric page;

c. A birth certificate with photo ID;

d. A U.S. visa issued by a foreign consulate; or

e. A national identity document that includes a photo.

3. A copy of the applicant’s marriage certificate, showing the relationship to the H-1B nonimmigrant.

4. Proof of eligibility, including:

a. An approved I-140 for the H-1B spouse; or

b. Proof that the H-1B nonimmigrant has received an extension under AC21 §§106(a) or (b), including a copy of the H-1B’s current and prior Forms I-797 (showing H-1B status), and:

i. Proof of having filed a labor certification application at least 365 days prior to the H-1B six-year limitation of stay. If the labor certification is approved, include proof that an I-140 petition was filed within 180 days of the approval if applicable; or

ii. Proof that an I-140 petition was filed 365 days prior to the H-1B six-year limitation of stay.

5. Two passport-style photographs of the applicant. 6. Fees. A bank draft, cashier check, certified check, personal check, or money order for the appropriate fee, made out to “U.S. Department of Homeland Security.”

Upon approval, the EAD expiration date should match the expiration date of the applicant’s H-4 nonimmigrant status. See USCIS Posts FAQs on Employment Authorization for Certain H-4 Dependent Spouses (2/2/17)

 

Timing Issues

 

While concurrent filing with an I-539 should allow for a more timely adjudication, USCIS takes the position that the underlying I-539 must be adjudicated first. In addition, on January 17, 2017, the mandatory 90-day adjudication period for employment authorization requests at 8 CFR §274a.13(d) was eliminated, which may further exacerbate processing times. Though USCIS allows applicants with pending H-4 EAD applications to call the National Customer Service Center (NCSC) to request “priority processing” at the 75 day mark. See Response to H-4 Nonimmigrant Spouses Comment; https://www.federalregister.gov/d/2016-27540/p-779. Note that those eligible for automatic extensions of their EAD must wait until the 165-day mark to request priority processing.  USCIS also takes the position that the 75 day clock does not start until the I-539 is approved. See USCIS Posts FAQs on Employment Authorization for Certain H-4 Dependent Spouses (2/2/17) For EAD extensions, USCIS allows the applicant to file 180 days prior to the expiration of the current EAD.

However, unlike other categories, a timely filed H-4 EAD extension is not eligible for an automatic extension of employment authorization upon filing.See Response to H-4 Nonimmigrant Spouses Comment; https://www.federalregister.gov/d/2016-27540/p-810.

 

BrianJohnson_Logo_Black-01 tbls1-immigrationandnationalitylaw location-san-diego

25
Apr 2017
file0001103831996

 

On December 12, 2016, the U.S. Department of Education (ED) announced that it no longer recognizes the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency. This determination immediately affects two immigration-related programs:

SEVP will provide guidance to affected students in notification letters, should their schools’ certification be withdrawn. However, students enrolled at an ACICS-accredited school should contact their designated school officials (DSOs) immediately to better understand if and how the loss of recognized accreditation will impact the F/M student’s status and/or immigration benefits application(s).

If an ACICS-accredited school voluntarily withdraws from SEVP certification or cannot provide evidence in lieu of accreditation for programs listed on their Form I-17, international students at these schools will have 18 months to:

  • Transfer to a new SEVP-certified program;
  • Continue their program of study until the current session end date listed on their Form I-20 (not to exceed 18 months); or
  • Depart the United States.

After this 18-month grace period, SEVP will terminate the SEVIS records of any active F/M student at an ACICS-accredited school who has not transferred to an SEVP-certified school or departed the United States. Please note, this guidance applies equally to all F/M students—regardless of program of study and the 18-month period is valid for English as a Second Language (ESL) students as well.

ACICS-accredited schools will be unable to issue program extensions, and students will only be allowed to finish their current session if the ACICS-accredited school selects to voluntarily withdraw its certification or is withdrawn by SEVP. If a student’s ACICS-accredited school is able to provide evidence of an ED-recognized accrediting agency or evidence in lieu of accreditation within the allotted timeframe, the student may remain at the school to complete their program of study.

English Language Study Programs

USCIS will issue requests for evidence (RFEs) to any individual who has filed Form I-539, Application to Extend/Change Nonimmigrant Status, on or after December 12, 2016, requesting a change of status or reinstatement in order to attend an ACICS-accredited English language study program. Upon receiving an RFE, individuals will have an opportunity to provide evidence in response, such as documentation showing that the English language study program they are seeking to enroll in meets the accreditation requirements.

If the student does not submit a new Form I-20 from an accredited school, USCIS will deny a change of status or reinstatement request because the program of study is no longer accredited by an entity recognized by ED.

For more information about the loss of ACICS accreditation on English language study programs, see U.S. Immigration and Customs Enforcement’s page on ACICS Loss of Accreditation Recognition.

The 24-Month STEM OPT Extension Program

F-1 students wishing to participate in the STEM OPT extension must have a degree from an ED-recognized accredited U.S. educational institution at the time they file their STEM OPT application. As noted above, USCIS considers the filing of the application to be the date of the DSO’s recommendation on the Form I-20.

USCIS will issue a denial to any F-1 student filing a Form I-765 STEM OPT extension if:

  • The STEM degree that is the basis for the STEM OPT extension was obtained from a college or university that was accredited by ACICS; and
  • The student’s DSO recommendation for a STEM OPT extension, and as indicated on Form I-20, is dated on or after December 12, 2016 (i.e., the date on which ACICS ceased to be recognized as an accrediting agency).

Because there is a requirement that students use a STEM degree from an accredited, SEVP-certified school at the time of application, the ACICS loss of accreditation prevents these students from qualifying for a STEM OPT extension. Students who receive a denial will have 60 days to prepare for departure from the United States, transfer to a different school, or to begin a new course of study at an accredited, SEVP-certified school.

Students whose Forms I-20 have a DSO recommendation date prior to December 12, 2016, are not affected. For more information about the impact of loss of ACICS recognition on the STEM OPT extension program, see U.S. Immigration and Customs Enforcement’s page on ACICS Loss of Accreditation Recognition.

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USCIS has changed the direct filing addresses for where to file certain forms for beneficiaries who will be working or training in Florida, Georgia, or North Carolina. The changes are as follows:

  • Starting May 20, 2017, anyone requesting L, O, or P nonimmigrant status for a beneficiary who will be working or training in Florida, Georgia, or North Carolina must file the Form I-129, Petition for a Nonimmigrant Worker and/or Form I-129S, Nonimmigrant Petition Based on Blanket L Petition with the California Service Center. Starting July 20, 2017, USCIS will reject forms sent to the wrong service center.
  • If you are filing a P major league sports-related petition, you must continue to file Form I-129 with the Vermont Service Center.

Please go to the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker web page to determine where to file your forms.

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