At long last, the DHS has published the final rule (regulation) allowing certain H-4 holders to apply for an EAD card. Eligibility requires the H-4 holder’s spouse to have an approved I-140 or to have already been approved for a 7th year extension under the AC21 rules. The rule goes into effect on May 26, 2015. Applications may not be filed early.
There might be a shakeup in how USCIS adjudicates educational equivalency. Lately, there had been a trend of Officers cracking down on degrees that were not “in-line” with the beneficiary’s proposed specialty occupation. In Raj and Company v. USCIS, the U.S. District Court for the Western District of Washington at Seattle bucked this trend and recently found that the position of “market research analyst” met qualifications as a “specialty occupation,” stating that the regulations do not “restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program.” Further, the position required as a minimum for entry a specialized degree in “market research,” or where no such degree is available, an equivalent technical degree accompanied by relevant coursework.
However, this will not lead to a free-for-all to anyone with a bachelor’s degree. The Court noted that the patently specialized nature of the position sets it apart from those that merely require a generic degree i.e. when employers are not particularly concerned with what type of bachelor’s an applicant has achieved. It is a positive turn of events that the courts understand that there is not a specific degree for every position.
As many of you read earlier this week, a Federal District court issued an injunction barring the implementation of portions of President Obama’s Executive Action. The Court’s ruling was based upon the Administrative Procedure’s Act (APA). It is not believed that the Court’s ruling will have any impact on the business measures announced by President Obama. The reason, is that the business measures were not being implemented by decree but, were directives to issue regulations consistent with the APA. We fully expect the regulatory process started by the President’s Executive Action to continue in spite of this injunction.
The Staffing Industry Analysts (SIA) published an article discussing the impact of President Obama’s Executive Action on staffing companies and HLG partner, Mike Hammond is quoted.
On Thursday, November 20, 2014, President Obama announced a number of measures that will reform our immigration system. While some of these provisions do not relate to employment-based immigration cases, there are several items that will provide clarification and relief for employment-based cases. Many of the specific details about how these changes will be implemented are still being released. However, please fund a summary below.
Adjustment of Status Applications
Individuals who have an approved employment-based immigrant petition and who have been unable to file their adjustment of status due to the quota backlog will be allowed to pre-register to receive adjustment of status benefits when their I-140 is approved but no priority date is available.
Guidance will be released to clarify the meaning of “same or similar” occupation. This is expected to allow broader flexibility to change jobs after the I-485 has been filed.
Guidance is expected to be released to illuminate the meaning of “specialized knowledge.”
Regulations are expected to be released in December or January to allow work authorization to certain H-4 nonimmigrants based upon their spouse’s permanent residence application.
Optional Practical Training:
Regulations will be released to expand the length of time that a STEM graduate may work through OPT authorization. This regulation will also expand the types of degrees that will be eligible for OPT. USCIS is also being directed to implement stronger “ties to degree-granting institutions, which would better ensure that a student’s practical training furthers the student’s full course of study.”
The Department of Labor will review and revise the PERM system, including modernizing the recruitment methods.
The Hammond Law Group is thrilled that the President is taking needed action to promote reform in our immigration system.
Lost in the President’s plan to provide relief to millions of undocumented/illegal people here in the US were major changes that will be hugely positive for H-1b workers and employers alike. A summary will be posted later today and more details provided as they become available but, the highlights include: the end of retrogression for US based workers (well, almost); elimination of the need for most h-1b extensions; in many cases, the advantage of being EB2 vs. EB3 would be eliminated; clearer L-1b rules; and, greater portability for H-1b workers which means easier access to resources for US employers. Nice job Mr. President !
The White House has announced that President Obama will proclaim the executive actions he will take on immigration tomorrow night at 8pm eastern. Proponents of business reforms should expect to be disappointed as it is not believed that he will take any action to address retrogression. However, it is expected that he will extend the STEM OPT period for US graduates. The White House believes this action will impact the number of H-1b cap filings. We believe that this change will have a positive impact on any US grad who was not so lucky, to have been chosen in the lottery but, will have no impact on the overall number of H-1b cap filings. The connection between those two, we think is mis-placed. We will provide a summary after his speech.