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Employment-based Immigration Updates

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Employment-based Immigration Updates

The Department of Homeland Security has proposed an amendment of its regulations to extend the availability of employment authorization to H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment, and have extended their authorized period of admission or “stay” in the U.S. under section 104(c) or 106(a) of Public Law 106-313, also known as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).

Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high demand skills to remain in the country and help spur the innovation and growth of U.S. companies.

This proposed amendment must go through a lengthy review process and it may take a few more months before the Department of Homeland Security issues proposed regulations, which require notice and comment before they can then become final regulations.

H-1B visa filing dates for FY 2014:

H-1B visas subject to the annual cap of 65,000 to be filed for FY 2014 can be submitted to USCIS on April 1, 2013. The earliest start date for new H-1B applications is October 1, 2013, but of course not all applications are subject to the quota.

The cap has been exhausted earlier and earlier in recent years, and early preparation is critical to obtaining an approved H-1B petition for FY 2014. LCA processing times are currently at least 7 business days, and small employers in particular will need to ensure that they have adequate documents to warrant a timely approval.

Employers should identify all employees who may need H-1B work authorization and may be subject to the cap. Current F-1 or J-1 employees, individuals seeking to change to H-1B from another work status, and individuals who are presently outside the United States may all require cap-subject H-1B applications.

Employers who meet the USCIS’s requirements for exemptions from the quota, including institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations, can submit H-1B petitions at any time during the year.

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