Undeterred by the temporary injunction that delayed the start of the expanded DACA program (which the Justice Department has appealed), the Obama Administration has announced the launch of another key element of its effort to modernize existing immigration laws.

Yesterday, USCIS announced the long-awaited regulatory change that will make certain H-4 spouses eligible for employment authorization (EAD). This extension of EAD eligibility does not apply to all H-4 spouses, nor does it apply to children.

For an H-4 spouse to be eligible for this category of employment authorization, the H-1B spouse must:

1. Be the beneficiary of an approved I-140 immigrant visa petition, or
2. Be in their seventh or later year of H-1B status by virtue of being the beneficiary of a pending or approved PERM labor certification application or I-140 immigrant visa petition that was filed more than 365 days before the end of their sixth H-1B year.

Although USCIS will not begin accepting H-4 EAD applications until May 26, 2015, we encourage potentially qualified individuals to contact us to determine whether they meet the eligibility criteria.

On April 1, 2015, employers may begin filing fiscal year 2016 H-1B visa petitions for individuals to begin H-1B employment on October 1, 2015. Congress places a cap of roughly 65,000 on the number of new H-1B’s available each year. There is also a separate cap of 20,000 initial H-1B’s available for individuals who have a master’s degree or higher from a U.S. college or university.

Generally, any petition for an individual who is currently in H-1B status or has held H-1B status within the past six years is not subject to the cap, although there are some rare exceptions. In addition, certain types of employers are exempt from the H-1B cap, such as non-profit research organizations and non-profit entities that are affiliated with a U.S. college or university.

In each of the past few years, USCIS received enough petitions to exceed these caps within the first week. Considering the improved economy and the fact that last year’s cap was reached on April 7 creating a significant pent up demand, we expect that the cap will again be reached during the initial filing period. Therefore, employers must identify any individuals for whom they might want to obtain H-1B status and file those petitions as early as possible for the best chance at getting one of the available visas. This is particularly critical for any recent graduates who are currently working pursuant to Optional Practical Training (OPT), and for employees who might be nearing the maximum limit on their current status, such as R-1 religious workers or L-1 intracompany transferees.

If you are an employer or potential employee and you have questions about the H-1B cap or the H-1B visa category, please contact us.

UPDATE: This morning, a Federal district court in Texas issued a temporary injunction preventing USCIS from implementing the expanded DACA program and the upcoming DAPA program. The Obama administration will appeal that decision and we expect the injunction to be lifted, but meanwhile USCIS will not accept applications under the expanded DACA program this week as originally planned. We will monitor these ongoing developments and post more information as it becomes available.

Please note that today's district court decision does not affect renewal applications for the initial DACA program launched in 2012, or any of the other potential executive actions the President announced on November 20, 2014.

Our original post concerning eligibility for the expanded DACA program is below.
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As Congress continues to delay movement on comprehensive immigration reform (CIR), President Obama continues to expand the use of executive action to create administrative programs to fix various areas of the U.S. immigration system.

USCIS is set to expand one such program, known as Deferred Action for Childhood Arrivals (DACA). Originally launched in 2012, DACA provided temporary, discretionary relief from deportation for people who were brought to the U.S. illegally as children.

This week, USCIS will begin accepting applications for an expanded DACA program intended to provide relief for those who were not eligible under the initial program. To be eligible for DACA protection, a person must demonstrate that they:

• Came to the U.S. while under the age of 16
  
• Have lived in the U.S. since June 15, 2007 (for the initial DACA program) or January 1, 2010 (for the expanded DACA program), and were physically present in the U.S. on that date
  
• Have not had lawful immigration status since June 15, 2012
  
• Are currently in school, graduated from a U.S. high school, obtained a GED certificate, or served in the U.S. military;
  
• Have not been convicted of certain crimes or otherwise pose a threat to national security or public safety, and
  
• Are at least 15 years of age

Deferred action does not provide any derivative benefits for relatives of those granted deferred action. Any applicant must independently meet the eligibility criteria.

Deferred action is available even if a person is currently in immigration court proceedings or is subject to a final order of removal from the U.S. People granted deferred action may obtain employment authorization (EAD) cards.

It is important to note that deferred action is discretionary relief and may be renewed or terminated by at any time. Receiving deferred action does not grant a person any legal status in the U.S., nor does it waive or eliminate the consequences of any previous or future immigration violations. It simply means that the government will not make any effort to deport the person from the U.S. during the deferral period.

If you or someone you know might be eligible for protection under DACA, please contact us.

The Department of State has released the March 2015 Visa Bulletin, a monthly report detailing the current cutoff dates for the filing or approval of green card applications in the various U.S. permanent visa categories. A person who is otherwise eligible to apply for or be granted a green card in the U.S., must have a current priority date as specified in the Visa Bulletin.

The March 2015 Visa Bulletin offers good news on all fronts, especially for nationals of India and China.  As of March 1, 2015, the priority date in the employment-based second (EB-2) preference category for Chinese nationals will advance six months to September 1, 2010, while the priority date in the EB-2 category for Indian nationals will advance 16 months to January 1, 2007.

Otherwise, the priority dates continue their steady advancement as the employment-based third (EB-3) preference and all family-based preference categories will advance at least a few weeks.

You can view the visa bulletin in its entirety below.  Please contact us with any questions.