Contributed by Sara Zorich
Green Cards May No Longer Always Contain a “Signature”
Employers should be aware that some Green Cards (“permanent resident cards”) now have an image stating “Signature Waived” on the front and back of the card where a signature would normally be located instead of the permanent resident’s actual signature. U.S. Citizenship and Immigration Services (“USCIS”) has indicated that these cards are issued to people entering the U.S. for the first time as lawful permanent residents after obtaining their immigrant visa abroad from a U.S. Embassy or consulate. This process began in February 2015. The Green Cards are valid documents and acceptable to support an employee’s authorization to work in the U.S. Employers should train the employees responsible for the Form I-9 process regarding this change.
EADs Come With Varying Expiration Dates Based on Court Injunction
On February 16, 2015, a federal district court judge in Texas granted a preliminary injunction temporarily blocking the implementation of President Obama’s Deferred Action for Parents of Citizens and Lawful Permanent Residents (“DAPA”) and the expansion of Deferred Action for Childhood Arrivals (“DACA”). As a result of the injunction, USCIS was ordered to stop issuing 3-year Employment Authorization Documents (“EAD”) for DACA recipients and only issue 2-year EADs going forward. Approximately 2,100 3-year EADs, issued after February 16th, were required to be returned to USCIS by July 31st. USCIS has indicated that they have issued 2-year EADs to the 2,100 affected persons. Note, the February 16th injunction DOES NOT affect the approximately 108,000 three-year EADs that were issued PRIOR TO the February 16th injunction going into effect. There continues to be ongoing litigation regarding the implementation of DAPA and the extended DAPA which will affect the period of time in which a DACA recipient may receive an EAD.
Employers should be aware that their employees may present EADs with varying expiration periods. Employers need not keep track of the daily process of the ongoing federal litigation but should train their employees responsible for the Form I-9 process that there is no set expiration date for an EAD and the expiration will vary based on the EAD. Remember, employers are not required to be document experts. During the Form I-9 process, employers are required to accept documents that reasonably appear to be genuine and to relate to the person presenting them. However, if the employee provides a document that does not reasonably appear to be genuine and relate to them during the Form I-9 process, you must reject that document and ask the employee to present alternate documents that satisfy the requirements of Form I-9.
Contributed by Jacqueline Lentini
Moments after President Obama announced that he would be expediting H-4 work authorizations last November, I received a call from a client inquiring about how to start the application process for his wife. I can understand their desire to jump on the opportunity. The green card acquisition process can drag on for years, testing the patience of many foreign nationals and frustrating their spouses who want to work, but who cannot by law. A dependent spouse’s inability to work can strain the couple’s economic viability and their marriage and prompt them to consider moving to another country.
The prospect of H-4 work authorization has lifted the hopes of many of those couples. The Department of Homeland Security (DHS) estimated that 179,600 spouses would apply for an Employment Authorization Document (EAD) in first year of availability with 55,000 requests each year afterward. In February DHS announced that they would begin considering applications for employment authorization for certain H-4 dependent spouses on May 26, 2015. Eligible individuals include H-4 dependent spouses of H-1B nonimmigrants who either:
- Are the principal beneficiaries of an approved Form I-140 Immigrant Petition for Alien Worker; or
- Were granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the six year limit on H-1B status.
However, on Thursday April 23, three employees from Southern California Edison sued the DHS to stop the work authorization provision, claiming that they had been displaced by H-1B workers and would face increasing competition if H-4 spouses were authorized to work. Save Jobs USA has also filed a preliminary injunction against the H-4 work authorization rule.
Given that the U.S. has not issued H-4 EADs before, we are in unchartered territory. It is hard to say how these cases and the H-4 EAD process will go. Rather than lose hope though, those interested in an H-4 EAD should be ready to file in case the May 26, 2015 date holds or for whenever DHS is able to accept applications.
Taking action to prepare to file will feel better than just waiting and will allow you to file as soon as the window for applications opens. Here’s what you will need to file an H-4 application for employment authorization:
- Form I-765, plus filing fee of $380.
- Two passport style photographs.
- Proof of your marital relationship. If your marriage certificate is in a language other than English, you’ll need an English translation for it.
- A valid passport.
- A copy of your visa stamp. Make sure that you have a visa stamp and that you have a copy of it to submit with your application.
- Your H-4 approval notice if you have one.
- Evidence of your I-94 stamp. The I-94 stamp is the stamp you received in your passport on the day you entered the United States.
- A copy of any prior EAD cards that you had. If you were a student and obtained an EAD card then, you’ll need to submit a copy of that card with your application.
Note: the above list is not meant to be an exhaustive list of documents to include nor is it meant as legal advice for any one specific individual.
Contributed by Jacqueline Lentini
In May 2014, the Department of Homeland Security announced a proposed rule to allow for work authorization for certain spouses of H-1B visa holders. The work permit is called an Employment Authorization Document or EAD. No time frame has yet been finalized for this benefit.
Employment authorization could be extended to H-4 nonimmigrant spouses in the following situations:
(1) The principal H-1B spouse is the beneficiary of an approved 1-140 Immigrant Petition; or
(2) the H-1B nonimmigrant’s period of stay is authorized under sections 106(a) and/or (b) of the American Competitiveness in the Twenty- First Century Act of 2000 (AC21). AC21 provides for a one-year extension of H-1B status beyond the six-year limitation if the H-1B visa holder is the beneficiary of a labor certification application or an I-140 petition that has been pending for at least 365 days prior to reaching the end of the sixth year of H-1B status. H-4 spouses of H-1B visa holders who meet these eligibility requirements would still need to apply for an EAD and pay the appropriate fee.
Further implementations to be considered include the following:
1) Expand Eligibility to All H-4 Spouses. This would make the U.S. a more attractive place to work and set up home, for all H-4 spouses. In turn, it would make highly skilled foreign workers (H-1B’s) much happier in their work and private lives, if spouses are able- or at least have the option- to have a career and generate income for the family unit.
2) Expand EAD Eligibility to H-4 Spouses Where the H-1B Nonimmigrant is the Beneficiary of a Pending Labor Certification Application or I-140 Petition. This approach towards H-4’s would remain true to the spirit and goal of enhancing the ability of the U.S to attract and more permanently retain highly-skilled foreign workers.
Contributed by Jacqueline Lentini McCullough
As part of the U.S. Citizenship and Immigration Services (USCIS) ongoing efforts to enhance the immigration system, the redesigned Employment Authorization Document (EAD) card document and Naturalization Certificate will deter counterfeiting, obstruct tampering and facilitate accurate authentication. USCIS began issuing the new EAD cards on October 25, 2011, and the redesigned Naturalization certificates on October 30, 2011. USCIS Director Alejandro Mayorkas indicated,
“These enhanced documents are more secure than ever. They advance our efforts to safeguard against fraud and protect the integrity of the immigration system.”
The new features of the EAD will help employers and law enforcement officials to recognize the card as proof of work authorization in the U.S. In terms of the new Certificate of Citizenship, the recent enhancements render the certificate more tamper-proof.
Despite the changes to the EAD document and Certificate of Naturalization, the manner in which an applicant applies for these documents will not change. USCIS will gradually replace EAD’s in circulation as foreign nationals apply for renewal or replacment EADs. Going forward, previously issued EADs remain valid until the expiration date printed on the card. Previously issued Certificates of Citizenship remain valid indefinitely.
Below are some noted changes to the new EAD card: