By Attorney Farhad Sethna © 2015
Until an alien’s “priority date” is current, the alien and any non-US Citizen dependents cannot apply for Adjustment of Status (“green card”) and concurrent employment authorization.
As background, just to indicate to you how far backlogged these priority dates are, for India-born second preference (EB-2, India), the priority date as of March 2015 currently stands at January 1, 2007. For third preference India-born(EB-3, India), the priority date as of March 2015 currently stands at January 1, 2004.
The situation is much better for China however. The priority date as of March 2015 for second preference, China-born nationals (EB-2, China) is September 1, 2010, while the priority date for China mainland-born nationals for third preference (EB-3, China) is October 22, 2011.
But in contrast, the priority date for spouses from all other countries stands at “current” for EB-2 second preference, and at June 1, 2014 for EB-3 third preference.
Contrasting this with India and China, you can see the huge wait that immigrants from China and India have to endure. This results in a very long wait during which their spouses cannot work to assist in supporting the family, and their children are unable to afford to go to college, among other hardships. Those skilled and qualified aliens and their families therefore tend to return back to their home countries or to other countries where they will receive faster residency status. This becomes a net loss to US industry as well as the US economy overall.
A (PARTIAL) SOLUTION:
President Obama has recognized that the lack of employment authorization for spouses of H-1b workers has long been a problem in keeping qualified professionals and highly skilled employees in the USA. Therefore, the USCIS issued a draft rule in 2014, which allowed for spouses of H-1b workers to apply for employment authorizations under certain limited circumstances. That rule has now became final.
The USCIS recently announced that effective May 26, 2015, it would begin accepting employment authorization applications from spouses of certain H-1b applicants.
WHO CAN QUALIFY?
Not all spouses of H-1b’s can qualify. There are only two categories of H-1b spouses who will qualify under the new rule. These are:
The spouse of an alien who has been granted continuance of H-1b status beyond the 6-year limit of the AC-21 (American Competitiveness in the 21st Century Act of 2000), sections 106 (a) and (b). This includes aliens who have a PERM (Labor Certification) application pending for one year or more, or aliens who have an I-140 petition pending for one year or more and have reached the end of their 6-years in H-1b status.
WHAT THIS MEANS:
This means that spouses of aliens can now apply for employment authorization if they are either (1) spouses of aliens who have already received an approved I-140 petition but cannot apply for adjustment of status because of priority date backlogs, or (2) spouses of H-1b nonimmigrants who have a Labor Certification or I-140 petition which has been pending for more than one year and are now eligible for their seventh or subsequent year in H-1b status.
WHAT DOES THE QUALIFYING SPOUSE NEED TO DO?
The qualifying spouse needs to file form I-765 together with the filing fee of $380.00. The category for employment authorization under this new rule is (c)(26).
Remember, this application cannot be filed until May 26, 2015.
This new rule is indeed a boon to those spouses of H-1b’s who are in the United States and still have to wait – sometimes for years – for the priority date to become current and to apply for adjustment of status and employment authorization. The ability to apply for and secure employment authorization will keep many families from the frustration that they currently experienced waiting to apply for adjustment of status, thus inducing those families (and their valuable jobs, experience, education and skills) from leaving the USA.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.