Thursday, December 31, 2015

I-140 EAD might actually come to a reality although no official announcement on the rule

Recently a "Draft Not Production 11/24/2015" has been circulating on the new form I-765 hinting in red the I-140 EAD possibility.  While no rule on the matter has actually been published, such a hint gives good hope for those who have been waiting for such a rule to happen.  We cannot really confirm for sure whether the I-140 work permit rule has been approved, however, the same situation happened for H4 EAD although the law was first announced before the "Draft Not For Production" came out.

At this point we can only hope that this will be a New Year gift to those who are suffering on an endless wait on the EB categories especially for India and China.

We wish all of you Happy New Year!

Wednesday, December 16, 2015

STEM OPT Extension Validity after February 2016

As you all know the "old" STEM OPT extension has been invalidated by a court. While there is new STEM OPT 24 months under OMB regulations review, there is a lot of uncertainty about what happens to those who have an already approved STEM OPT after February 2016.  It seems from sources that at least one service center has mentioned that the STEM OPT already obtained prior to February 2016 which goes beyond such a date will still be valid.  However, there is no clear clarification on this because everybody was hoping that by this time the new OPT extension would be validated. Unfortunately with the present political climate, it seems that everything has been put on 'hold'.

We are advising our clients to take this news with a 'grain of salt' because the invalidated of the old STEM OPT was done by a court and the court did not mention anything about continuing on already approved STEM OPTs. However from AILA (American Immigration Lawyers Association), the Nebraska Service Center seems to confirm that they will allow those who already have an approved OPT (STEM) to continue using it after February 2016.

We sincerely hope that things are going to move forward in this area and the new OPT 24 months extension will come by before February 2016 to clear the confusion. If you need help with your OPT, H4 EAD or any immigration issues, please call us at (510) 742 5887.

Thursday, December 3, 2015

H4 EAD in force - do not be discouraged to file your H4 EAD!

The H4 EAD program has actually "rocked" the business community giving opportunities to both individuals and companies to hire highly talented employees which otherwise would not have been possible.  Indeed the H4 work permit has allowed many to seek employment in companies which are reluctant to file for H1B or employing OPT students.  Others have simply started businesses which are in fact employing many others.  We hope to see some great startups coming from the H4 visa holders soon.

However, while the H4 EAD is very popular amongst H4 and H1 candidates, it is not so popular among many companies which 'prefer' H1B holders rather than an H4 EAD holder. As such some companies are discouraging candidates to move on H4 EAD based on myths. Recently we have received a call from an H1B holder who was eligible to move to H4 and also an EAD, where the employer said:

"1. The company cannot hire you under H4 EAD;
  2. The program (H4 EAD) will soon be discontinued and
  3. You will not be able to move back on H1B visa status."

Let us analyze the three arguments.  First it should be illegal for an employer to say they cannot hire on H4 EAD because the EAD is a work permit. Most states does not allow such discriminations. Second, so far the H4 EAD is strong and nobody has been able to discontinue the program. Of course, there is a possibility it might be revoked but so does other executive programs. Third, once someone is cap exempt and continue to qualify as cap exempt, that person can always move back on the H1B.

Based on the above, we recommend that if you have a chance to move to an H4 EAD, do not be discouraged just because the employer is discouraging you.  We recommend you speak to an experience H4 and H4 EAD attorney before you make a move. Feel free to contact us at 510 742 5887 for any questions.