Terminating the H4 EAD?

Terminating the H4 EAD?

 
In February 2015, the Obama administration promulgated a federal regulation permitting certain spouses of foreign employees in H-1B visa status to seek authorization to work in the U.S.

Ordinarily, a spouse or child of a foreign employee in H-1B status is given a ‘derivative’ status known as ‘H-4’ status.  Under most circumstances, someone in H-4 status is not allowed to work in the U.S.   However, under this program, a spouse who is in H-4 status may apply for an Employment Authorization Document – (an ‘EAD’ or ‘work permit’) – if the H-1B spouse is also the beneficiary of an approved I-140 Petition for Alien Worker. 

The I-140 Petition For Alien Worker is the first step in the ‘green card’ process which shows that the foreign employee is eligible for a ‘green card’.  Because of the backlog of visa numbers for natives of some countries such as China and India, some foreign employees may have to wait years before they can take the second step of actually applying for a ‘green card’.  The executive order gave relief to the spouses of these foreign employees who successfully completed the first step while waiting for the second step.  It is typical for a foreign employee who qualifies for an H-1B visa to have a spouse who is also highly educated or skilled, so this program allowed spouses to put their education and skills to good use while waiting for a ‘green card’.

It was widely expected that when Donald Trump took office, he would attempt to eliminate this program.  Recent reports indicate that a proposed new federal regulation has been drafted that would do just that.

An added dimension to this story is the existence of a lawsuit styled Save Jobs USA v. U.S. Dept. of Homeland Security filed in April 2015 and presently at the D.C. Court of Appeals.  ‘Save Jobs USA’ is a consortium of technology workers who argue that the manner in which the H-4 EAD program was created was improper.  Proceedings in this case have been held in abeyance until December 31, 2017 to give time to the U.S. Dept. of Homeland Security (under the new Trump administration) to assess the case.  A ruling may be coming as early as January, so this may be a factor in how/when/if the Trump Administration addresses this program.

In the meantime, foreign employees and their family members who may be eligible for the program should examine whether they are in a position to benefit from these regulations…sooner rather than later.

 

Your HS&D Immigration Team

What is the Diversity Visa?

What is the ‘Diversity Visa’?

Basically, the Diversity Visa ‘Lottery’ is a program that provides an opportunity for individuals from countries that do not have many immigrants in the U.S. to apply for a ‘green card’.

Here is clarification on some of the issues associated with the Diversity Visa Program:

1.       Individuals from only certain countries are eligible to apply for a Diversity Visa.  The U.S. Department of State uses a complicated formula to determine which countries have low admission rates to the U.S. over the preceding 5 years.  Thus, the countries on the list change as the formula is applied each year.  Persons from those countries with the fewest numbers are eligible to participate.

 

2.       It really is a ‘Lottery’.  Persons from the listed countries can apply once in a year to participate in the Lottery, and like any lottery, it is a random selection process that is very difficult to win.  In 2015, there were 14.5 million applications for only 50,000 visas, so the odds of being randomly selected is very remote.

 

3.       There is no guarantee that you get a ‘green card’.  If a person is randomly selected, it does not mean that he or she gets a ‘green card’; it only means that the person can then apply for a ‘green card’.  A person must still meet certain education or work experience criteria to get a ‘green card’.  In addition, the person must, like all other ‘green card’ applicants, go through a background check, meet health and financial criteria and be vetted before going for an in-person interview at the U.S. Embassy in their country to see if the person is admissible into the U.S.  If the person passes the interview, he or she will get an ‘immigrant visa’ in his or her passport, but still must be examined at the U.S. border before he or she can be admitted.  Furthermore, if the person does not use the immigrant visa within one year, it is terminated and he or she will not be admitted.

It is important to recognize that the formal name of that program is the ‘Diversity Visa’ program because that explains its purpose.  Here’s why:

A Very Brief History

U.S. Immigration laws up until the 1952 McCarran-Walter Act operated on a system of quotas – allowing only a certain number of immigrants from each country to enter the United States.  This was preserved in the Act, but modified in subsequent amendments to open America’s borders to insure there was a variety of nations represented in the melting pot of America, (hence the ‘diversity’).  In what was then a mere quaint seed of globalization, our leaders recognized the importance of sharing ‘American Ideals’ with the rest of the world.   

As a consequence of the 1990 Act creating the program, anyone from anywhere in the world has a chance to fulfill his or her dream to come to the United States for a chance at a better life.  In return, the United States benefits from the traditional goal of sharing its values and ideals with persons from around the globe – not to mention the contributions that such motivated persons make to American culture, community and economy.

 

What About The Terrorist Attack in New York?

It has been widely reported that the suspect in the terrorist attack in New York arrived in the U.S. from the small country of Uzbekistan on one of these ‘Diversity Visas’ back in 2010.

The perverse and horrific actions of this individual are inexcusable.  And it is fair to inquire whether there was any inherent flaw in the Diversity Visa program that was somehow exposed by this perpetrator.  Given the random and slim odds that any one individual could win the visa lottery makes it an unlikely strategy for anyone intending to come to the U.S. for the purpose of causing harm; the fact that the suspect evidently has lived in the U.S. attempting to run a business while raising a family since 2010 makes the connection even more tenuous, and with no prior criminal background, it would make it difficult to have foreseen during his visa interview years ago that he might one day decide to inflict his terror on innocent people.  The fact that all but two of the persons killed by him were also immigrants from other countries visiting the U.S. makes his crime particularly sad and ironic.

 

HS&D Immigration Group