Proposed modification to regulation for allowing EAD for certain H4s

[Administrator2]

As an organization, Immigration Voice also submitted comments applauding the change and provided recommendations for how the proposed modification could be further improved.

Here is the link to our comments to the proposed regulation -
Regulations.gov

We are hoping for swift implementation of the final regulation.

Thanks to everyone who submitted positive comments for proposed modification to regulation concerning allowing work authorization for H-4 visa holders.

IV

[sdeshpan]

Great comments, well thought out and articulated. How does the process work - the "recommendations" made by IV, although perfectly sensible, how does USCIS even start to consider them, assuming they have the will to do so? Does that alter the process in any way?

[Administrator2]

Originally Posted by sdeshpan

Great comments, well thought out and articulated. How does the process work - the "recommendations" made by IV, although perfectly sensible, how does USCIS even start to consider them, assuming they have the will to do so? Does that alter the process in any way?

At a high level, the next step will involve for DHS/USCIS to go through the submitted comments. DHS/USCIS will review the suggestions/recommendations. At their discretion, based on the merit of the suggestions, DHS/USCIS may decide to amend the proposed rule with some of the suggestions before publishing a final rule. Then the agency will publish the final rule in the federal register and it generally goes into effect after 30 days.

There could be more steps involved but if you are interested to learn more, here is an official document about the rule making process:

https://www.federalregister.gov/uplo...ng_process.pdf

[whiteStallion]

This is a great initiative, if DOL/USCIS agrees to the 4th point, it will help thousands of EB3s. Kudos to IV for this.

[gcharry]

Thank you Admin and rest of the team.

[indianguy220]

Thank you for all the effort IV put into this regulation while most of the big law firms couldn't care less to even write a small letter supporting this.

[sdeshpan]

I found this relevant news article, please remove if it's not considered helpful to the discussion:

Obama has big options for green card, H-1B reform without Congress - Computerworld

Any specific reason why this "counting of dependents" wasn't included in the recommendations?

[greyhair]

Originally Posted by sdeshpan

I found this relevant news article, please remove if it's not considered helpful to the discussion:

Obama has big options for green card, H-1B reform without Congress - Computerworld

Any specific reason why this "counting of dependents" wasn't included in the recommendations?

Oh boy now IV is caught with pants down. Time for h1techslave gctorture and closemind.247 to jump on you. Why did you create more backlogs for Eb3-I by not asking for this. Now there is only one thing left for IV to say "You got me partner".

[sdeshpan]

Originally Posted by greyhair

Oh boy now IV is caught with pants down. Time for h1techslave gctorture and closemind.247 to jump on you. Why did you create more backlogs for Eb3-I by not asking for this. Now there is only one thing left for IV to say "You got me partner".

I don't see how this specific provision will help only EB-3 or why a specific group of people should get pissed. It is beneficial for all equally, but again, my point is not to create more controversy. It was an honest question to the IV leadership team to see if there were some genuine concerns with this - not everything mentioned in media articles makes sense legally, so IV can easily clarify the story behind this, I hope!

The last thing I want is more comments from stirring the pot using my post.

[Administrator2]

Originally Posted by sdeshpan

I found this relevant news article, please remove if it's not considered helpful to the discussion:

Obama has big options for green card, H-1B reform without Congress - Computerworld

Any specific reason why this "counting of dependents" wasn't included in the recommendations?

The comments were submitted in response to proposed regulation for Spousal work authorization (i.e. EAD for H-4). To make sense and to sound reasonable, the comments had to be pertinent to the justification and/or specific sections/sub-sections of the law used to make a case for Spousal work authorization administrative fix. So we could only make recommendations to further improve the proposed regulation.

Based on statements made over two weeks ago by Speaker Boehner and The President, it is possible that there could be another round of immigration related Executive Order in the coming weeks and months. We had sent two different newsletters on this subject within this month:

https://www.facebook.com/notes/immig...43435699055990

https://www.facebook.com/notes/immig...50847964981430

We have been working on these fixes for a period of time and we request everyone to get active and follow this debate closely. To make it to work, we may need help to make phone calls and/or write/fax letters on a short notice.

[gk_2000]

A2: Much appreciate what you have done here. Thank you!

[DallasBlue]

USCIS should consider allowing submitting and receiving of adjustment of status when a visa number is not available (meaning when dates are not current), allowing backlogged applicants can get work authorization and advance parole

Hope this becomes a reality.

[DallasBlue]

Can IV propose :

• to exclude counting of dependent visas from employment categories and make the dependents of employment visas as riders.
• to count dependents of employment based visas in some other family category.

Thanks

Dear President Obama ,

Could you please change the policy on derivative visa counts for employment based category by issuing an executive administration fix order.

We know of no explicit authorization for derivative family members to be counted under either the Employment Based preference in the Immigration and Nationality Act.



Let us examine what INA § 203(d) says:

A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.
There is nothing here that explicitly authorizes or mandates the counting of family members under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal alien, nothing requires that family members also be given their own numbers. Suppose, for example, that there is only one visa number left in a fiscal year for the EB-2 category and that the last principal beneficiary who gets this number has a spouse and 6 children. What happens to them? Ought they not be accorded “the same status and the same order of consideration?” Should only the principal become an LPR while everyone else waits till next year? What if visa retrogression sets in and the family has to wait, maybe for years? This does not make sense. Is there not sufficient ambiguity in INA § 203(d) to argue that family members should not be counted against the cap? We do not contend that they should be completely exempted from being counted. As stated in INA 203 § (d), family members should be given the “same status and the same order of consideration” as the principal. Hence, if there is no visa number for the principal, the rest of the family does not get in. If, on the other hand, there is a single remaining visa number for the principal, the family members, however many there are, ought to be “entitled to the same status, and the same order of consideration as the principal.”


Thanking you

[Administrator2]

Originally Posted by DallasBlue

Can IV propose :

• to exclude counting of dependent visas from employment categories and make the dependents of employment visas as riders.
• to count dependents of employment based visas in some other family category.

Thanks

Thanks for your suggestions. Counting EB dependents in family category will not happen. Asking something like this will alienate with a lot of people who are otherwise supportive of our cause. It will not be prudent to alienate sympathetic decision makers and not get anything in return. More importantly there is no legal basis for asking something like this.

Administrative fix and executive order has limitations to abide by the existing law. Anything not within the existing law will not be considered. Administrative fix or executive order is not a substitute for bill in Congress.

We welcome all suggestions and ideas you may have. However, we do request that you do your research and provide legal basis for your suggestions/ideas. Just writing a wish list that has no legal basis within the existing law will not help. Another thing to consider is the political viability of the ask.

Asking to count EB dependents in family based category is neither legally possible nor politically viable.

[DallasBlue]

again thank you for your thankless service.

We know of no explicit authorization for derivative family members to be counted under either the Employment Based preference in the Immigration and Nationality Act.


Let us examine what INA § 203(d) says:

A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.
There is nothing here that explicitly authorizes or mandates the counting of family members under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal alien, nothing requires that family members also be given their own numbers. Suppose, for example, that there is only one visa number left in a fiscal year for the EB-2 category and that the last principal beneficiary who gets this number has a spouse and 6 children. What happens to them? Ought they not be accorded “the same status and the same order of consideration?” Should only the principal become an LPR while everyone else waits till next year? What if visa retrogression sets in and the family has to wait, maybe for years? This does not make sense. Is there not sufficient ambiguity in INA § 203(d) to argue that family members should not be counted against the cap? We do not contend that they should be completely exempted from being counted. As stated in INA 203 § (d), family members should be given the “same status and the same order of consideration” as the principal. Hence, if there is no visa number for the principal, the rest of the family does not get in. If, on the other hand, there is a single remaining visa number for the principal, the family members, however many there are, ought to be “entitled to the same status, and the same order of consideration as the principal.”