Written by Sashti Srinivasan, Founder, Globalmatri.org February 3, 2015

PRESIDENT OBAMA'S 2014 EXECUTIVE ACTION ANNOUNCED ON NOVEMBER 20, 2014

Many Parents of brides and grooms from India have called me to inquire if there is any "good news" in it for their H1B wards, in the recently made announcement on Immigration Reforms by President Obama to move forward with Executive Orders. Let me clarify:

On November 20, 2014 President Obama announced a plan for the Immigration Accountability Executive Action 2014. Reportedly eighteen (18) documents were released by the White House and the Department of Homeland Security (DHS) that elaborated on the President's Plan.

Mainly, the President's Action will permit Parents of U.S. Citizens and Lawful Permanent Residents who are "illegal aliens", "living in the shadows" as the President termed them, (as of November 20th, 2014) to be eligible to apply for "deferred action" (avoiding removal/deportation from the U.S.,) if they have been present in the U.S. since January 1, 2010 and if they have had five (5) years of "continuous presence".

The above situation does not apply to those who are in the U.S. from India on F1 Student visa, OPT (training visa), H1B, H4, L1, J1 type "work visas". Many facets of details as they relate to spouses of H1B's "H4" status conversion into H1B, L1Bs and extended OPT terms, in which many Indian parents are interested, are still awaited. Here, after the President has issued his Proclamation, the Department of Homeland Security has to work with the United States Citizens Immigration Services (USCIS) to issue new regulations, guidelines and policies regarding governance and compliance of various kinds of work visas and that is what is going to take time! USCIS is rummaging through the 18 documents the President and DHS have issued. USCIS has to be very careful in issuing such new regulations, guidelines and policies, because they do not want to be caught in "questionable" and "ambiguous" drafting of new regulations and guidelines that would invite so many unintended law suits and face consequences thereof. And that is what is taking time!

IMMIGRATION REFORMS UPDATE, JANUARY 31, 2015

1. Employment Authorization for certain H4 visa holders: Changes to the rules are in the making to allow spouses of certain H1B visa holders who are in the category of long-pending Permanent Resident Applications (in other words, those whose petitions are in the process from H1B~GC), to seek employment authorizations, converting the status spouse from H4 to H1B. Eligible individuals would include H-4 dependent spouses of principal H-1B workers who: (1) are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or (2) have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-firstCentury Act of 2000 ("AC21") as amended by the 21st Century Department of Justice Appropriations Authorization Act.

2. Timing of Adjustment of Status for Application Filing ~ Currently, when an employer has filed a Form I-140 Application on behalf of his/her employee for an immigration Petition for his/her Green Card, the individual would have to wait for an available visa number, in seeking an Adjustment Status (Form I-485), a last step in the Permanent Resident process. Reportedly, rules are being re-written to allow individuals to file Form I-485, once the I-140 is approved, facilitating a quick application of Employment Authorizations. These steps should facilitate easy portability of one's employer or job, facilitating easy relocation in matrimony of one spouse or the other.

3. L1B Visas ~ USCIS is in the process of further clarifying the term "Specialized Knowledge", underlying basis of L1B visa classifications of those who can apply for L1B visas. USCIS always Requests Evidence of such core qualifications, because of inconsistencies in the interpretation of what that "Specialized Knowledge" is, to qualify for an L1B! It is hoped that issuance of guidelines by USCIS of what that "Specialized Knowledge" is, would go a long way in alleviating the interpretation by the Indian Consulate in Chennai, for expeditious issue of such L1B visas.

4. OPT (Optional Practical Training) Visas ~ USCIS is in the process of expanding the time limit allowed on OPT for STEM (science, technology, engineering and mathematics) graduates, to include those whose first degree may have been a STEM-related, now seeking OPT, after a second non-STEM related degree.

The truth here though is that not many students graduating out of colleges/universities want to stay on, on a OPT visa, and are in a "great hurry" to try their luck in seeking and getting converted into a H1B visa, which is being over-subscribed year after year! Their fear is that if they don't get on H1B this year, through the lottery system, they may have to wait and seek H1B next year and if they don't get one in the second try, they may be crossing over their OPT visa period normally allowed for them and may have to return to India for good! Thus, they are not willing to take a gamble to remain on OPT for two years, because if they, by chance don't get on the H1B visa, in their second attempt, they would have to return to India for good ~ assuming a lot of debt that their parents have created for sending them for higher education to the U.S., to take care of without resources.

5. National Interest Waiver (NIW) ~ Normally, when an employer sponsors an employee for a Green Card, he/she must go through a "litmus test" process of a Labor Certification. Certain Advanced Degree Holding individuals with exceptional-ability who can demonstrate that their work is in the "national interest" need not go through Labor Certification Litmus Test. USCIS is in the process of issuing guidelines clarifying what those standards are for qualifying under NIW program. Reportedly, the Department of Labor is going to take a "fresh look" at all of its Labor Certification Application Programs, this year!

It is anticipated that all of the above process could take several months before the rules are clarified and guidelines are issued, for their implementation. USCIS is reportedly drafting all of these rules and guidelines.Despite all of the above, based on the Department of State (DOS) recent Visa Bulletin, following dates for backlog are currently in effect:

VISA DATES FOR EMPLOYMENT-BASED CATEGORIES

India ~ EB-2 Category (meaning those sponsored by their Employers for Green Cards, from H1B~GC ) ~ Professionals Holding Advanced Degrees (like, M.S. Degrees from the U.S.) or Persons of Exceptional Ability, this category has dramatically retrogressed from May, 2009 to February 15, 2005. In other words, those with filing dates for Labor Certification/Green Cards around February 15, 2005, are being processed for Green Cards ONLY now! No forward movement is predicted for this category in the foreseeable future!

India ~ EB-3 Category (Skilled Workers & Professionals (with undergrad Degrees from India, without any U.S. Degrees) who have been sponsored by their Employers for Green Cards (from H1B~GC), that date still remains stuck in November 22, 2003.

Based on the above, getting actual Green Cards in their hands by Petitioners’ whose applications have been sponsored for Green Cards, still seems far, far away! unless Congress can legally authorize to increase the issuance of number of Green Cards to this category of workers, to at least a 100,000 to 150,000 per year! And at the present time, Congress is in no mood to make such sweeping changes or ratification to the Immigration Reforms Bill. So, getting a Green Card by those holding I-140 and I-485 may seem like a far cry in the wilderness! The ONLY consolation they can have, in the meantime, is that they can continue to live in the U.S. indefinitely, until the Green Card is actually received by them, with easy portability of their jobs, with location and employer, facilitating easy relocation in matrimony, by brides and grooms!