The U.S. Citizenship and Immigration Services' Administrative Appeals Office (AAO) ruled yesterday that employers must file an amended H-1B petition when the work location of the employee covered by the initial H-1B petition changes to a geographical area not covered by the initial petition. It is not sufficient to just obtain an updated Labor Condition Application. The AAO determined that such a change in the work location is material to the terms of employment as stated on the visa petition authorizing employment and an amended petition becomes necessary to reflect the terms of employment. This is a change from past H-1B practices and employers must act accordingly in order to avoid penalties and denials of visa applications by employees who apply for a visa for the first time or seek to renew their H-1B visa.
Certain H-4 Spouses Eligible to Apply for Employment Authorization Starting on May 26, 2015
The U.S. Citizenship and Immigration Services announced yesterday that certain spouses of H-1B specialty occupation workers will be eligible to apply for employment authorization starting May 26, 2015. The new rule provides work permits for H-4 spouses of H-1B workers who are on the pathway to permanent residence, but who cannot yet apply for their green cards due to backlogs.
H-4 spouses will be eligible to apply for employment authorization if:
The new rule has the potential to benefit the families of H-1B workers whose green card processes have been delayed significantly due to the annual limits on immigrant visa availability. In particular, this benefits the H-4 spouses of H-1B workers chargeable to India or China, whose I-140 petitions were filed in the EB-2 or EB-3 preference categories and may be backlogged for many years. However, the new rule does not apply to H-4 spouses of H-1B1 (Chile/Singapore), H-2 or H-3 nonimmigrants.
January 16th, 2015
Undocumented immigrants in California can officially apply for a driver’s license
As of January 1, 2015 undocumented immigrants who are 16-years or older can now receive a California driver license. However, unlike traditional driver’s licenses, the license will state “Driving Privileges Only,” meaning that it cannot be used as a form of identification, to obtain employment, board an airplane, open a bank account or receive other public benefits.
In order to receive the driver license, applicants must:
- Proof of identity. You can find a list of accepted documents online at http://dmv.ca.gov/portal/wcm/connect/11a86d62-f848-4012-bc7d-4192bdef4f00/doc_req_matrix.pdf?MOD=AJPERES
- Proof California residence, and
- Pass California’s written and driving test
Aspects of President Obama's November 2014 executive action that will benefit those who are unlawfully in the U.S. or wait to be granted a green card.
Based on a briefing on 11/20/14 by the White House, the following is a summary of the most important elements expected to benefit immigrants and to be part of the Administration’s announcement of executive actions on immigration. Details and guidelines are still being worked on and many items are still unclear, and the merits of many may not be known until the details are known. Some will require regulations, but others can be done by agency memos instructing immigration officers on how to adjudicate applications.
Here are the principal proposals of the executive actions that will impact those who are unlawfully in the United States or a waiting to be granted a green card:
1. Two deferred action initiatives that combined are estimated to benefit 4.4 million:
a. Deferred Action for Parents (DAP). Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since 1/1/10, and who pass background checks and pay taxes, will be eligible to apply for deferred action, which will be granted for a 3-year period. The plan is to stand this up within 180 days (for applications to be accepted). Note that parents of DACA recipients are not eligible.
b. Expansion of DACA. DACA will be revised to get rid of the age cap, and to change the date that continuous presence must have started to 1/1/10. It also will be granted for 3 years (including those with pending renewal applications). Ready in 90 days.
2. Pending Proceedings. There will be a review of cases currently under removal proceedings to see who is prima facie eligible for the relief stated in this program, and those cases will be closed.
3. U Visas. Three more types of offenses will be added to the list of offenses for which U status can be granted. No specifics were available regarding which offenses will be added.
4. Foreign Entrepreneurs. Certain investors will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation (no further details at this time). This will be done by regulation. Also, entrepreneurs, researchers, inventors, and founders will be eligible for national interest waivers. This will be implemented through policy guidance.
5. Timing of Filing for Adjustment of Status. The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people. This will be done by regulation.
6. H-4 EADs. Immediate family members of H-1B workers will be eligible for employment authorization. Regulation will be finalized, probably in December or January.
7. I-601a Waivers. The provisional waiver will be expanded to include spouses and children of LPRs. The definition of extreme hardship will be expanded and clarified.
8. Advance Parole. There will be a new advance parole memo that will address the issues raised in Matter of Arrabally-Yerrabelly and make clear that CBP should honor the advance paroles issued by USCIS.
9. Visa Modernization. There will be a Presidential Memorandum directing the agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visa available under law. Issues such as whether derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.
The U.S. State Department announced yesterday that immigrant visa applicants at non-electronic processing posts are no longer required to submit originals of civil documents anymore. Instead applicants must submit photocopies of their civil documents by mail to the National Visa Center (NVC). When the appointment is scheduled, applicants will need to bring their original documents to the interview. Applicants at designated electronic processing posts will continue to submit their documents via e-mail.
A state judge overturned Missouri's constitutional ban on gay marriage today in a ruling that immediately set off a rush among some same-sex couples to apply for marriage licenses.Missouri Attorney General appealed the ruling to the state Supreme Court but did not seek a stay of the judge's order.
Federal District Court judge Daniel Crabtree ruled Kansas' gay marriage ban unconstitutional today.
Crabtree issued a hold on his ruling, so same-sex marriages cannot begin immediately. The Secretary of Kansas' Department of Health and Environment, can appeal the court's decision until 5 p.m. CST on Nov. 11. Stay tuned!
I am an immigration attorney serving the greater San Francisco Bay Area and beyond.