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Carl Shusterman's Immigration Update


  1. EADs for H-4 Spouses

    On May 26, the USCIS will begin accepting applications for form I-765 Employment Authorization Documents (EADs) submitted by certain H-4 spouses of H-1B professionals.
    What follows is a list of answers to 10 of the most frequently asked questions about this new policy:

    1. Which H-4 spouses are eligible for EADs?
    H-4 spouses of H-1B professionals with approved I-140 visa petitions or who is the beneficiary of a PERM application or an I-140 which was filed at least 365 days before the expiration of his or her 6-year limitation of stay as an H-1B nonimmigrant. If the PERM application was approved, the I-140 must have been filed with the USCIS within 180 days.

    2. What forms do I need to file?
    File form I-765 with proof of your H-4 status, show that your spouse is in H-1B status and has an approved I-140 or that a PERM application or I-140 was filed over 1 year before the ending of the 6th year of the H-1B. The filing fee is $380. If you are filing for an H-4 extension, you may apply for an EAD concurrently.

    3. How long will my EAD be valid?
    Be sure to request that your EAD last for as long as your H-4 status is valid.

    4. Are there any limits on my employment?
    No, you can work in any type of lawful employment. You can even work for multiple employers if you wish. You can change jobs at any time. You can start your own business. You can stop working at any time. You can work as a salaried employee, an hourly employee or a contractor.

    5. What if my spouse and I are both in H-1B status? Can I change to H-4 status and request an EAD at the same time?
    Yes, as long as you meet the eligibility requirements discussed in Question #1 above. Your employer will probably be delighted not to have to submit and pay for an H-1B extension for you.

    6. How early am I allowed to submit my H-4 extension and EAD application?
    You can concurrently submit your H-4 extension and EAD application 6 months prior to the expiration date of your H-4 status.

    7. How long will it take for me to receive an EAD?
    An EAD should be issued within 90 days. However, if you are applying for an H-4 and an EAD simultaneously, the waiting time will be longer.

    8. What if my spouse no longer works for the employer who filed his/her approved I-140?
    This fact alone should not prevent you from obtaining an EAD. A 2000 law commonly referred to as AC-21 permits a person in H-1B status with an approved I-140 and a pending I-485 to change employers after his/her I-485 has been pending for 180 days or more as long as his/her new job is in the same or a similar occupation. No new PERM or I-140 is required. However, even if this is not the case, you will still be permitted to obtain an EAD. Your spouse will be able to retain the old priority date, but his/her new employer may have to file a new PERM application and an I-140 visa petition.

    9. Can I use premium processing to apply for an EAD? Can I file my application online? Is it possible for an H-4 child of a parent in H-1B status to apply for an EAD?
    The answer is no to each of these questions.

    10. Approximately how many H-4 spouses will be able to qualify for EADs?
    The USCIS estimates up to 179,600 H-4 spouses will be eligible to apply for EADs during the first year of this program, and 55,000 in each subsequent year. The new program does not distinguish between cap-subject and cap-exempt H-1Bs.

    Updated 05-26-2015 at 03:13 PM by CShusterman

  2. Will the H-1B Cap Be Raised this Year? A bipartisan group of Senators lead by Orrin Hatch (R-UT) is trying to pass a bill which would raise the H-1B cap from 85,000 to 135,000. The I-Squared bill would do this by raising the general cap from 65,000 to 115,000 while leaving the master’s cap at 20,000.

    Does this bill stand a chance to be signed into law before the April 1st H-1B start date?

    Perhaps, but there are a lot of hurdles which must be overcome, including some internal battles within Hatch’s own party.

    Hatch, who heads the Republican’s High Tech Task Force recently stated: “Our high-skilled worker shortage has become a crisis.”

    However, not all his GOP colleagues agree.

    Two senior Republican Senators, Jeff Sessions (R-AL) and Charles Grassley (R-IN) argue that there is no shortage of high-tech workers in our country. In 2007, Grassley said: “Unfortunately, the H-1B program is so popular that it’s now replacing the U.S. labor force.” Senator Grassley is slated to become the Chairman of the Senate Judiciary Committee later in January when the Republicans take control of the Senate.

    Are Senators Sessions and Grassley champions of the American worker or are they simply anti-immigrant? As to the first issue, they have two of the worst voting records on labor-related issues according to the AFL-CIO. They both have negative voting records on immigration legislation.

    Even if the bipartisan coalition is somehow successful in getting the bill through Senator Grassley’s Committee and then approved by both the Senate and the House of Representatives, there is no guarantee that it would be signed into law by President Obama.

    The President does not like the idea of “piecemeal” immigration reform. Instead, he supports the idea of Comprehensive Immigration Reform (CIR). He would have signed the bipartisan CIR bill which was passed by the Senate in 2013, but Speaker of the House John Boehner (R-OH) declined to bring the bill to a vote in the House.

    That bill would have raised the H-1B cap to 180,000 rather than 135,000. Although the new legislation is a significant improvement to the status quo, it doesn't do enough to solve the larger problem. It all but insures that there will continue to be an “H-1B lottery” this year as over 172,000 H-1B petitions were submitted by employers in 2014.

    Not only that, but allowing more H-1B professionals to work in the U.S. without abolishing the “per country” quotas for employment-based green cards leaves workers born in India and China with little choice but to look elsewhere for jobs, thus threatening our country’s supremacy in various areas of science.

    Opponents of raising the H-1B cap should remember that until 1991, there was no cap of the number of H-1B visas, and yet there was virtually no criticism of the program in Congress.

    Maybe we should let the free market rather than the federal government decide how many H-1B professionals to hire.
  3. H-1B Filing Season Starts April 1: OPT Cap-Gap Rule, Affiliation Each year, there is an 85,000 numerical cap on the number of H-1B petitions for professionals to work in the U.S. on a temporary basis. Generally, the USCIS will start accepting H-1B petitions submitted by employers starting on April 1 for workers who will start their jobs on October 1, 2011.

    Of these 85,000 H-1Bs, 20,000 are reserved for persons in possession of an advanced degree from a university in the U.S. This past year, the 20,000 cap was reached on December 24, 2010 while the 65,000 cap was reached a little over one month later on January 26, 2011. This year, as in past years, we will track the number of approvable H-1B petitions filed with the USCIS on a weekly basis.

    *OPT Cap-Gap

    The H-1B system is complex and contains many exceptions to the general rule that employment may not commence until October 1. One exception involves foreign-born students who graduate from universities in the U.S.

    These students typically obtain a one-year work permit under a program called Optional Practical Training (OPT). Many students then seek to change from OPT to H-1B. A problem often arises when they obtain their OPT work permit after graduation in June, and their OPT expires one year later. Their employers submit H-1B petitions for them in April, but they are not permitted to be employed in H-1B status until October.

    The question is what are they supposed to do between the time that their OPT expires in June and their H-1B begins in October? Quit their jobs and leave the U.S. for four months? This period of time is commonly referred to as the "cap-gap".

    In order to solve this problem for these university graduates and their employers, the USCIS promulgated a cap-gap regulation.

    This regulation allows a student working with an OPT work permit that is about to expire to continue working unless he is able to change status to H-1B on October 1 as long as his employer submitted an H-1B petition and change of status for him before the expiration of his OPT. Even if his OPT expires prior to the approval of his H-1B change of status, the regulation provides that his OPT status is automatically extended. Of course, if the H-1B petition or change of status is denied, he must immediately cease working, and leave the U.S. within 60 days.

    What happens if the H-1B petition and change of status are not submitted by the employer until after the OPT work permit has expired, but while the student is within his 60-day grace period after graduation? In this case, the regulation allows the student to remain present in the U.S., but not to work until his status changes to H-1B on October 1.


    H-1B professionals who work at following places are exempt from the H-1B numerical caps:

    1) Institutions of higher education or related or affiliated nonprofit entities;

    2) Nonprofit research organizations; or

    3) Governmental research organizations.

    One contentious issue revolves around the definition or what is an "affiliated" nonprofit entity.

    Without going into details, suffice to say that the USCIS has taken an increasingly restrictive approach about what the word "affiliated" means. Where, in the past, evidence that a research lab or a hospital had an affiliation agreement with a university was enough to satisfy this requirement, during the past year, the USCIS has issued numerous Requests for Evidence demanding to see prove the two organizations were commonly owned. As a result, many employers chose to submit their H-1B petitions under the numerical caps rather than challenge USCIS' interpretation of the word "affiliated" in AC-21 in Federal Court.

    On March 16, the USCIS announced that "it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education." The agency further announced it would "give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education - absent any significant change in circumstances or clear error in the prior adjudication - and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education."

    Although this is welcome development, USCIS made clear that this is an "interim" policy. One can only hope that the agency will not return to its previous restrictive attitude.

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    Updated 12-02-2013 at 02:15 PM by CShusterman

  4. Why USCIS is Still Accepting H-1B Petitions[1].jpg On November 27, the USCIS announced that they had received 58,900 H-1B petitions toward the 65,000 cap. So there are 6,100 numbers remaining, correct? (Update: By December 4, the USCIS had received 61,100 H-1B petitions toward the 65,000 cap.)

    Not exactly.

    We have Free Trade Agreements with both Singapore and Chile which set aside 6,800 "H-1B1" numbers for nationals of those countries. Do the math: 65,000 minus 6,800 equals 58,200. This means that the agency has received 700 more H-1B petitions than it can approve. Why then is the USCIS still accepting H-1B petitions?

    Because some of the petitions that have been submitted will be denied? That is part of the reason. The other reason is a very practical one: Even though 6,800 numbers are reserved for nationals of Chile and Singapore, this does not mean that these numbers are actually used.

    So how many H-1B1 petitions have been submitted this year for nationals of Chile and Singapore? USCIS has not said, but we think that it may be in the neighborhood of 700. Why?

    Because we link to a memo from the USCIS dated June 1, 2006 which informed the public that the H-1B cap was reached on May 26th that year. (The USCIS memos in 2007 and 2008 which announced that the H-1B cap was reached did not mentioned H-1B1 usage in Chile and Singapore.) With reference to the H-1B1 numbers, the USCIS memo states as follows:

    "Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the "H-1B cap." Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are annually set aside for the Chile/Singapore H-1B1 program. As a result of reserving 6,800 H-1B1 visas for FY 2007, the H-1B cap for that fiscal year is 58,200. However, USCIS has added back to the H-1B cap 6,100 unused FY 2006 H-1B1 visas, for a total of 64,300, as described below.

    Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year. As FY 2007 H-1B petitions are approved for start dates beginning no earlier than the first day of fiscal year 2007 and reasonable anticipated usage of approved H-1B petitions for any 45-day period exceeds 8,000, USCIS has incorporated its reasonable projection based on H-1B1 usage to date that 700 H-1B1 visa numbers will be used in FY 2006 into the FY 2007 H-1B cap count by adding the remaining 6,100 unused H-1B1 visas back into that count, resulting in a total cap of 64,300 FY 2007 H-1B visas approvable. Because unused H-1B1 visas for FY 2006 have been already allocated in this manner, there will be no additional later H-1B filing season to use these visas. The 6,800 visas reserved from the FY 2007 H-1B count for FY 2007 H-1B1 purposes are anticipated to be handled in a similar manner with respect to the FY 2008 H-1B cap count during calendar year 2007. This allocation of FY 2006 H-1B1 visas based upon reasonable projections of usage to the end of the fiscal year will not affect the availability of H-1B1 visas in any way; they will continue to be fully available, with any year-end difference between actual and projected usage expected to be minimal."

    We link to the complete text of the 2006 USCIS memo from

    and to the fiscal year 2010 H-1B usage charts from

    With 6,100 H-1B numbers remaining, and the demand for H-1Bs spiking, we expect that the cap will be reached before the end of December.

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    Updated 12-02-2013 at 04:47 PM by CShusterman

  5. How to Use Your H-1B to Qualify Under Section 245K
    For the past few months, there have been no green cards available for persons in the employment-based third preference category (EB-3) and long backlogs in the EB-2 category for persons born in India and China.

    So, with few green cards to grant, why has the USCIS been scheduling interviews for persons in these categories?

    The short answer is that just because the USCIS cannot grant most EB-3 and EB-2 applicants green cards, the agency can take advantage of the lull in applications for adjustment of status to deny persons with pending applications.

    How can they do that? Easy!

    Let's say that a person was out-of-status for more than 180 days since their most recent admission to the U.S. Denied! Not qualified for adjustment of status under section 245K of the immigration law.

    The irony is that section 245K was added to the law by Congress in order to make the requirements for adjustment of status less onerous for employment-based applicants. It allows persons to adjust their status to permanent residence as long as they were not engaged in unauthorized employment or were out-of-status for 180 days or more since their most recent admission to the U.S.

    By way of contrast, persons in the family-based preference categories (who are not immediate relatives of U.S. citizens) can not adjust their status if they have engaged in unauthorized employment or been out-of-status AT ANY TIME.

    Let's say that one time during the many years that you were in H-1B status, you lost your job and were out of work for over 180 days. Adjustment of status denied!

    Or maybe you moonlighted at another job without INS's (This was in 2003!)permission. Adjustment of status denied!

    There are endless variations to this sad scenario. But not only will your application for adjustment of status be denied, but the USCIS will be only too eager to issue a notice for you to appear before an Immigration Judge in removal proceedings!

    All those years of working in the U.S. and paying your taxes, all for naught?

    Not so fast!

    If you are still qualified for an H-1B or an L-1 status, there is a solution. Simply leave the U.S. and return using your visa or obtain a new visa Poof! Upon returning to the U.S., you are once again qualified to adjust status under section 245K.


    Because the time that you were out-of-status or engaged in unauthorized employment occurred before your last admission to the U.S., so this does not bar you from immediately re-applying for adjustment of status under section 245K.

    Not bad, am I right?

    A couple of weeks ago, one of our physician clients was denied adjustment of status because he had moonlighted without authorization many years ago, and had never informed us. At the beginning of July, he approached us with apologies and tears in his eyes. Was the future that he had planned in the United States suddenly over?

    Not at all.

    Two weeks later, we obtained an approved H-1B petition for him. He was granted a visa in his country last week, and returned to the U.S. yesterday. Next week, we will resubmit an application for adjustment of status for him under section 245K.

    No harm, no foul.

    Read USCIS' memorandum regarding adjustment of status under section 245K from our "Adjustment of Status" page at

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    Updated 12-02-2013 at 03:57 PM by CShusterman

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