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USCIS Conducts Third Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations

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Somireddy Law - Immigration Help

USCIS has recently determined that we needed to select additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. On Nov. 19, USCIS selected from among previously submitted electronic registrations using a random selection process.

The petition filing period based on registrations selected on Nov. 19 will begin on Nov. 22, 2021, and close on Feb. 23, 2022. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file.

H-1B cap-subject petitions must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. Online filing is not available for H-1B petitions. Petitioners filing H-1B petitions must do so by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.

Registration selection only indicates that petitioners are eligible to file H-1B cap-subject petitions; it does not indicate that the petition will be approved. Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still submit evidence and establish eligibility for petition approval based on existing statutory and regulatory requirements.

Please don’t hesitate to contact us at info@somireddylaw.com if you have any questions.

 

Q&A on New H-4 EAD and L-2 EAD Regulations

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  1. I have a valid L-2- I-94. Do I need to apply for L-2 (EAD) in order to work in the US?

In response to a class-action lawsuit filed by various H-4 & L-2 individuals in the Western District of Washington, USCIS has entered into a settlement agreement (dated November 10, 2021). Based on this settlement agreement, USCIS will issue a formal notification allowing persons with valid L-2 (I-94) to work (during the validity of his/her I-94) without the need for EAD. So, once we receive the notification from USCIS in the next few days, L-2 visa holders will no longer be required to apply for EAD.

  1. My L-2 (I-94) has expired. I have filed for an L-2 extension. Can I continue working based on the settlement agreement dated November 10, 2021?

No, the settlement agreement dated November 10, 2021, applies only to those individuals who have a valid I-94. It does not allow a person to work once the person’s I-94 expires. So, you would need to wait until your L-2 extension is approved.

  1. When does a person qualify for an automatic extension of his H-4 (EAD) (up to 180 days maximum)?

In order to qualify for an automatic extension of H-4 (EAD), the person (a) must have a valid H-4  (I-94) and (b) should have properly filed for an H-4 (EAD) extension before his/her current EAD expires.

Further, the duration of this automatic extension will continue only until whichever comes first:

  • The end date on Form I-94 with valid H-4 status;
  • The approval or denial of the EAD renewal application; or
  • 180 days from the “Card Expires” date on the face of the existing EAD.
  1. My H-4 and H-4 (EAD) will be expiring on December 01, 2021. I have timely filed for an extension of my H-4 & H-4 (EAD). Will I be able to use the 180-day automatic H-4 (EAD) extension rule?

No, to qualify for the automatic 180-day H-4 (EAD) extension rule; you must have a valid I-94. Since, your I-94 will be expiring on December 01, 2021, you may not benefit from this rule until your H-4 extension is approved.

  1. My H-4 and H-4 (EAD) have expired on October 01, 2021. I have timely filed for an extension of my H-4 & H-4 (EAD). Today I received my H-4 approval. But, my H-4 (EAD) is still pending with USCIS. Will I be able to use the 180-day automatic H-4 (EAD) extension rule?

Yes, but not for the full 180 day period. Since you have a valid I-94 now, you would be eligible to work from now until 180 days from the date your H-4 (EAD) has expired i.e. 180 days from October 01, 2021 (approx. until March 29th, 2022).

  1. My H-4 (EAD) will be expiring on December 01, 2021. But, my H-4 I-94 is expiring On February 27th, 2022. I have timely filed for an extension of my H-4 & H-4 (EAD). Will I be able to use the 180-day automatic H-4 (EAD) extension rule?                                     

Yes, but not for the full 180 day period. Since you are authorized to work only until the validity of your H-4 I-94; you would be authorized to work only until February 27th, 2022.

  1. When using the automatic 180-day H-4 (EAD) extension, what documentation does my employer need for I-9 purposes?

For I-9 purposes, you will need to submit the following documents to your employer:

  • Document to prove that you have a valid I-94
  • Copy of the expired H-4 (EAD) card
  • Copy of timely filed H-4 (EAD) extension receipt notice

Transfer of preference category of a pending I-485 application (Interfile) & recent USCIS updates regarding the H-4 & L-2 EADs. 

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In the recent past, we have been receiving a lot of questions regarding the interfiling process, its eligibility requirements, advantages & disadvantages of going with an interfiling, etc. We are hopeful that this newsletter will answer most of your questions.

What is interfiling?  

Interfiling is a process by which you make a formal request to the USCIS, asking them to consider a pending adjustment of status application (I-485) filed based on one Immigrant visa petition (e.g., I-130, I-140, I-526 & I-360) to another visa petition.

You have the option of requesting the transfer under the same immigrant visa category:

  • Interfile from I-140 (EB-2) to I-140 (EB-3)
  • Interfile from I-130 (F-3) to I-130 (F-4)

OR

Requesting the transfer under a different immigrant visa category:

  • Interfile from I-526 to I-140 (EB-3)
  • Interfile from I-130 (F-3) to I-140 (EB-3)

How do we request interfiling? 

Since USCIS does not have a specific process for requesting an interfiling, it can be done in many ways. Some of them include:

  • Making a written request to the service center where the AOS application is pending.
  • Calling USCIS service center and placing a request with Level 2 officer.
  • Make a request using the “Ask Emma” chat from the USCIS website.

When do you qualify for the Interfiling? 

To qualify for the interfiling the following conditions must be met:

  • The current I-485 petition should be pending with USCIS.
  • The Final Action Date for the new visa category must be current. For example: Assume that John Doe has a pending I-485 which was filed based on EB-2 I-140 and he wants to port it to EB-3 I-140, then he can only do so when his priority date under the EB-3 (Final Action Date) is current. It does not matter whether the initial I-485 filing was based on the Date of Filing or the Final Action Date. You can only request the interfiling ONLY when the Final Action Date is current under the new visa category.

Can you force USCIS to accept the interfiling? 

Not really. Although interfiling is part of the Immigration & Naturalization memo; since it is not part of any statute or regulation it would be tough to force USCIS to accept the request.

Can a person file multiple I-485 applications under different visa categories? 

Yes, USCIS allows a person to file multiple I-485 applications under different visa categories. For example, the same person can have one I-485 (filed as a dependent); another I-485 (filed using EB-2 I-140); another I-485 (filed using EB-3 I-140), and another I-485 (filed using the I-526/I-130 petition). All of these applications could be pending at the same time. Once the person’s Green Card is approved based on one of these I-485 applications; others will be considered void.

Advantages of Interfiling: 

The major advantage of interfiling is that there is no need to refile a fresh I-485 under a different visa category in order to take advantage of the priority dates under this new visa category.

Dis-advantages of Interfiling: 

  • Only one Immigrant visa petition (I-130/I-140 (EB-2)/I-140 (EB-3) may form the basis of an adjustment of status application at any particular time. Also, once the request for interfiling is granted, the applicant is not permitted to withdraw the request or request transfer of the adjustment of status application to a third basis at a later time except for certain exceptions.

Hence, once an interfiling is granted; you might lose the opportunity to use the dates from the initial Immigrant visa petition. This could be a major challenge for applicants from India/China where the visa bulletin dates move back and forth.

  • AC-21 Portability issues: AC-21 portability provisions allow an employee with a pending AOS application to move to a different employer without jeopardizing their AOS application. To take advantage of this provision, the employee has to wait for at least 180 days from the date of filing the I-485 application.

These 180 days clock will reset if you are requesting an interfiling. So, the 180 days period starts from the date the interfiling is accepted. That means you will have to wait a much longer time to take advantage of the AC-21 portability provisions.

  • Interfiling has to be considered carefully so that the I-485 application is not jeopardized. This might pose a bigger challenge if someone has already invoked the AC-21 portability provision. For example: Assume that John Doe has two I-140s from ABC Corp. One under the EB-2 category I-140 (EB-2) and another under the EB-3 category I-140 (EB-3). John Doe has initially filed an AOS application based on the I-140 (EB-3). Although he was maintaining his H-1B status, he moved to a different employer and has invoked the AC-21 portability.

Now, in order for him to interfile to take advantage of his I-140 (EB-2); he would have to prove that he actually intends to work for ABC corp and that ABC corp intends to continue hiring him for the position classified under I-140 (EB-2). This could pose challenges in case the officer questions John Doe’s intent during the visa interview.

Advantages of going with a new I-485 filing instead of Interfiling: 

Since USCIS may or may not accept interfiling and you have the option of filing multiple I-485 applications under different visa categories; considering a new AOS filing would be advantageous.

A new AOS filing has the advantage of avoiding the challenges of coordinating the request with USCIS and may be particularly helpful if it is hard to predict which visa category will move fast. This is especially beneficial for those who are born in India where it’s hard to predict whether EB-2 or EB-3 dates move faster.

Good news for L-2 & H-4 spouses 

USCIS has entered into a settlement agreement in response to a class-action lawsuit filed by various H-4 & L-2 individuals in the Western District of Washington, Seattle.

As per the terms of the settlement agreement, once implemented by USCIS, L-2 spouses will no longer have to apply for work authorization and need an EAD (Employment Authorization Document) as proof in order to work in the United States. For H-4 spouses who have lawful status and merely need to renew their employment authorization, USCIS will allow an automatic extension of their authorization for 180 days after expiration should the agency fail to process their timely filed applications. Please note these regulations are still to be implemented and cannot be used unless USCIS releases a formal notification. 

Please don’t hesitate to contact us if you have any questions. Thank you.

Santosh Reddy Somi Reddy Esq. | Attorney-at-law*
Somireddy Law Group PLLC

20745 Williamsport Place, Suite 390

Ashburn, Virginia 20147

Main 703-544-2200 | Cell 732-421-5490| eFax 800-682-8711

Offices: Ashburn, VA | Princeton, NJ | Hyderabad, India

www.somireddylaw.com