USCIS Giveth and USCIS Taketh Away in the H-1B Category (But Mostly Taketh)

Posted on: May 22nd, 2015
by Greg Siskind
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On May 26th, USCIS will start accepting employment authorization document applications for H-4 spouses who are married to H-1Bs with approved I-140 petitions. The measure is long-awaited and while it leaves out a lot of people, it is welcome news. USCIS has just released a guidance memo on H-4 EADs and today it posted the new I-765 which is needed for those applications.

In the initial call introducing the H-4 employment authorization document, I asked about one scenario I see as being a major problem. If one is applying to change to H-4 status from another category (e.g. H-1B to H-4), USCIS will require the change of status application to first be approved before the 90 day EAD processing deadline clock will start. But that will mean for many that their ability to work legally will end and they’re out of work for up to 90 days while waiting on the new work card. Two simple solutions to this would either be to continue recognize as work authorized anyone waiting on the EAD approval who was work authorized in another category when the application was filed (such as the example I mentioned) or simultaneously adjudicate the change of status and the work card when requested (even when this may mean a lengthier overall adjudication). USCIS has completely ignored me and apparently doesn’t care about this.

Unfortunately, USCIS also just seriously messed up a whole lot of  other H-1B and other H-4s by announcing they are temporarily suspending premium processing of H-1B extension applications due to the expected surge in H-4 EAD applications. The policy is in effect until July 27th. USCIS presumably wasn’t worried because H-1B extensions come with 240 days of automatic work authorization while an application is pending. But there are at least two situations where not having premium processing will cause major headaches.

First, if an individual needs to travel out of the country after the initial H-1B visa expires, a new visa stamp is going to be needed and that will only be issued after the extension application is approved. Non-premium processed H-1B applications can take several months to approve.

Second, many states tie drivers license expirations to H-1B approvals and the mere fact that one is authorized to work is not enough require an approved H-1B extension before they’ll issue a drivers license. In many parts of the USCIS, not being able to drive is highly expensive and a major inconvenience for those left unable to take to the roads.

USCIS already delayed the implementation of the H-4 rule in order to avoid the H-1B cap filing season in early April. H-4 extensions are often filed without premium processing because of the interim 240 day work authorization so the workload demand shouldn’t have been that great. This is lousy customer service and given the exorbitant fees already charged for premium processing (an extra $1225), the agency should be able to afford to staff up as needed.

Oh, and USCIS decided to gouge H-1B employers on another front as well. They’ve made an AAO case precedent (basically, a form of rulemaking without having to follow rulemaking rules) which requires employer to file H-1B amendments when H-1B employees are moved locations even when there are no material changes in their employment. There are few issues for USCIS to think about in these cases, but the H-1B amendment fees will be enormous.