Legal Immigration – EAD for H4, H-1B Priority System, Recapture Unused Green Cards

Raghuram Sukumar USA Visa 33 Comments

Latest Update from Obama – Big changes announced for High Skilled Legal Immigration. ( Nov 20, 2014)

 

In recent news conference President Obama made the following statement

I suspect that on my flight back, this’ll be part of my reading, taking a look at some of the specifics that we’ve looked at,” Obama said. “And I’ll be making an announcement soon.”

U.S. President Obama is planning to announce a series of legal immigration reforms via his Executive Power.

Here some of the expected executive actions include for legal immigration being considered.

  • EAD for H4 Visa holders
  • Recapture unused EB Green Card numbers
  • Not counting family members of Green Card applicants
  • H-1B Visa Priority System
  • Apply for EAD with I-140 Approval

Executive Actions

The President of United States has an Executive Power that allows the passage of legislation that bypasses the U.S. Congress.

If you are new to United States political environment, government policies and how laws are implemented, you should read this article – How a Bill Becomes a Law in the USA.

Here’s a quick overview of  Bill to Law Process.

  • A new bill is introduced (in the U.S. House or Senate).
  • The U.S. Senate passes the bill.
  • The same or a modified bill is passed by U.S. House
  • The President signs (or vetoes) the bill.
  • The bill becomes a new “Law of the Land.”

This process can sometimes be long, hard, and many bills doesn’t become a Law.

In the current state of american  politics of an election year, the U.S. House of Congress ( Controlled by Republicans) doesn’t want to bring the Comprehensive Immigration Reform Bill into a vote, which was already passed in the U.S. Senate.

So this means that there will be no Immigration Reform bill that will that could be passed via regular means.

However, the U.S. President has the executive power to pass a bill within his limits without going via the U.S. Senate and U.S. House.

He announced a few months back that he’s going to pass Executive Actions on Immigration Reform (legal and illegal immigration reform law).

Watch the video above about  this statement.

He gave a timeline of  “End of Summer”.  That’s about end of  first week of September.

This week and next week is going to be crucial for any immigration changes via Executive Order.

Legal Immigration and Executive Order

What components are discussed in the “Legal Highly-Skilled Immigration Reform”?

  • EAD for H4 Visa holders
  • Recapture unused EB Green Card numbers
  • Not counting family members of Green Card applicants
  • H-1B Visa Priority System

1. EAD for H4 Visa Holders

Most H-1B workers are aware of this rule.

You can follow the latest updated in the following links:

The public comment period for this proposed rule has ended in July and we are waiting for USCIS to publish the final or interim final rule. This requires additional 30- to 90-day review period.

2. Recapture of Unused Employment Based Green Card Visas

This is going to be huge change and have major impact on  Green Card Wait Times.

Over the years, there is an estimated 250,000 Employment based Green Card visa numbers that weren’t used.

Recapturing those unused Green Cards via Executive Action would remove the existing green card backlogs immediately.

This would mean that both EB2 and EB3 will become current and could stay current for a few more years.

Current Dates Means folks with approved  PERM Laor approval and I-140 can file for I-485 and get Green Card within 1 year.

 

3. Count Only the Principal Applicants for Green Card

This provision is similar to H-1B and H4 visas. The annual 65,000 H-1B cap only counts the applicant for H-1B visa. This does not include their family members who might travel using H-1B worker visa to the U.S.

Whereas for Green Card visa numbers, if a principal applicant with a wife and 2 children applies for a Green Card, then a total of 4 Visas will be allocated from the total available cap.

So President Obama could use his executive power to change the rule to count only the Principal Applicants.  This would make a lot more Green Cards available to others in the queue.

If President Obama’s executive action will include either one of the provisions (#2 or #3), this would have a huge impact in lowering  the Green Card waiting time.

4. H-1B Visa Priority System

The H-1B Visa lottery is simply madness. Every year, there are 65,000 H-1B Visas available in the General Cap and another 20,000 in the Advanced Degree Cap. When more than 85,000 H-1B applications are received by USCIS, then random lottery selection method of applications is done to approve visas.

To address those concerns, there had been reports about

  • Implementing an H-1B Visa priority System
  • Restrict usage of H-1B Visa by IT services companies overseas
  • Create Special Visa for IT services companies (not possible without Congress Approval)

The H-1B Visa priority system would give higher priority for non-H-1B dependent employers to get H-1B visas when there is lottery.

Who are H-1B dependent employers?

A company with over 51 employees and 15% or more of employees are under H-1B status.

If this provision gets added to the Executive Order, then IT services companies (like Infosys, TCS, Wipro, etc.) will be affected.

My 2 Cents:

Instead of having a priority system, how about finding “Active H-1B Usage Count” per employer for IT overseas services companies?

Active H-1B Usage Count:

  • Number of H-1B Visa issued in the last 6 years.
  • Number of H-1B Workers utilized over 3 years in last 6 years.
  • Limit H-1B Cap in upcoming cap-year to active Usage.

If Company A received 1,000 H-1B Visas in the last 6 years and if 250 employees were in the U.S. for over 3 years, then allocate 250 H-1B visa for the upcoming year.

Keep this count rolling for the past 6 years.

So far there hasn’t been any official announcement from the White House on provisions that will be part of Executive Order to reform the Legal Immigration system – Green Card, H-1B Visa, H4 Visa, etc.

 

Other option wold be not returning the filing fee for applications. This would prevent employers from filing 1000’s with the hopes of getting more applications selected in the lottery.

 

People reading this will try to find out what reform piece will better benefit them.

  • Folks who are applying for H-1B from India will be mad if restrictions are placed on the H-1B Visa process.
  • Folks who are waiting for their Green Card for years will look for ways to get their Green Cards faster.
  • Others will be wondering if their wives in H4 can start working.

At end of the day, America’s immigration System is broken. We need Immigration reforms in some form or another.

Stay tuned for more details if indeed President decided to use his Pen to sign executive order for Immigration Reform.

Comments

  1. Great! Competition increased for Genuine Women like me who has a US masters degree and a H-1B holder and a Genuine experience(8+) because there will be more H4 EAD in IT who will be ready to work on 30$. Cool!

  2. @Raghuram sir
    What is impact. On F1 VISA STUDENTS
    Or particularly ungrads going

  3. Nothing is gonna happen bro as most of his orders are specifically for border security, increase pay for ICE officials and give amnesty to 5 million undocumented immigrants. So there is not much hype going around for highly skilled immigrants..

    1. Be optimistic. This is the only chance legal high skilled immigrants have. there’s not much hope for Republican controlled congress to pass any immigration bills.

  4. You mention 1st week of September. Today we are on 19th November 2014. What is the status of Executive Order by Obama?

  5. What should be fixed:

    1. Restrict H1B visas so that no one company can file more than 5000 visas in 1 year.
    2. Close EB1-C loophole that is being exploited by overseas Managers. People with as lows as 4 years of experience are getting green cards through EB1-C where other people are in line for 10+ years.
    3. Give priority to applicants with Master’s degrees from US colleges or years of experience.

  6. President Obama has delayed his Executive Action on Immigration Bill until after November Elections. This time Democrats may even lose control of the Senate and then it will be impossible for Immigration Bill to pass. President Obama never made it clear also that what sort of Executive Action was he taking. Focus was more on Illegal Immigrants and less on H-1B visas or Green Cards. Meanwhile Indian IT Companies were also not happy with the Immigration Bill. So expect the status -quo to remain as it is for some time.

  7. Another major issue is Strained interpretation of EB-2 provision , Section 203(b)(2) by USCIS.This is one of the major problem faced by lakhs of Indian IT/software
    professionals from decades. Indians who studied 3 year full time
    bachelors degree in Computer Applications & related fields (Eg BCA
    etc etc)with 2 year full time Masters degree in Information Technology
    & related fields [Eg: MSc(IT) etc etc] from Indian universities
    are facing difficulties
    when applying for green card under EB2 category, especially after filing
    I-140 or I-485 petition, where most of the time the petition ( I-140
    or I-485 ) is denied or rejected, even after having 5 years full time
    university education in Computer Applications/IT as well as relevant 5+
    years of post
    masters experience in the field of computer Applications/IT. USCIS
    should take a liberal & Practical view at least when a software
    professional has both degrees i.e 3 year bachelors degree with/and 2
    year master degree are in to Computer Applications/IT and USCIS should
    allow combination of bachelor and master’s degrees when both degrees
    are in to computer Applications/IT ([Eg BCA with MSc(IT) etc etc]
    instead of asking/insisting for singe source 4 year degree which is
    happening now for EB2. USCIS should interpret the EB-2 provision,
    Section 203(b)(2), more broadly and sensibly & should not cling
    onto its narrow interpretation, which has caused needless hardship to IT
    professionals having 3-year bachelors degree and 2 year masters degree
    in Computer Applications/IT. Congress must step in and clarify the
    degree equivalency requirement under EB-2. Indeed, the degree
    equivalency requirement to establish eligibility for an H-1B visa is so
    much more sensible as it allows the foreign national to combine
    education and experience to demonstrate the equivalency of a US 4 year
    degree. The same standards of equivalency ought to apply when the
    foreign national is being sponsored by an employer for permanent
    residency.

  8. As per the things I know (with almost certainty), point 2 & 3 are out of question. These are simply impossible to fix without legislation.

      1. #2 Visa recapture was done as a law. AC21 was a law passed by Congress. AC21 is not something that President
        Clinton did by himself. Congress passed the bill and President (at the
        time) signed it.
        #3 I am 99% sure it won’t happen even if it’s possible through executive order.

        There is also confusion around the announcement timing with November coming up soon.

      2. Well explained article! You did not explain – EAD for H1 B after I140 approval, Can you please talk about that?

        1. I should have included that. It’s same as getting EAD only when PD is current. We have till next week for the President to do something. Would he do anything is the question.

  9. Is there any details about the proposal –
    Apply for EAD with I-140 Approval
    Does it apply for current company only or an i-140 approved from the previous company as well?

    1. This is still in review. There is no timeline but this is almost a given. I can’t comment on how it will be interpreted for previous company I-140 but I think it should be ok.

  10. This video was published on July 1st 2014. Why is this article written now? The bill must have been passed by now according to the video

  11. so a bad news coming up for students who are currently and about to pursue MS from USA?

    1. I don’t think so. Students with advanced degrees from US universities have a separate quota of 20000 in H1B lottery selection. And they are also included in the general quota H1B lottery if not selected in advanced degree lottery. So, in my opinion, given the H1B priority system comes in, there will be less applications from Indian IT companies. And this would increase chance of MS students getting selected in lottery. Once a petition is selected in lottery, getting approval is another story, which , I think, is not going be affected by H1B priority system.

  12. Problem is not with the immigration system, it’s because of not implementing the existing rules.

      1. I am talking about legal immigration, people even without proper degrees are getting H1’s that’s bcos of USCIS not following the rules

        1. What is the basis of this comment? Unless you have anything concrete to support it, I will suggest avoiding statements like this.

          1. Concrete to support?? Either you are new to H1 or showing a blind eye. Their are 100’s of topics in the internet to support my statement. Many of my colleagues are the examples. And the story ends here, no more arguments.

          2. Topics on the internet doesn’t sound like a proof to anyone. If you know of colleagues who don’t have a degree (or equivalent experience) you should complain about them.

            I used to think I know more than average about immigration but if blog topics are evidences, may be I don’t know anything.

          3. Rahul – Vishal’s blog posts have created a quite an impact in this HSB community. I have interacted with him for few years know and he’s pretty aware of what’s going on with politics and immigration.

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