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New Case Challenges New H-4 Regulation That Would Allow Spouses to Work in U.S.

A few weeks ago we blogged about a new regulation allowing H-4 visa holders(dependents of H-1B visa holders) to work in the United States. However, a case has just been filed in Washington D.C. federal court challenging this regulation. The lawsuit, Save Jobs USA v. U.S. Department of Homeland Security, was filed lastThursday by Save Jobs USA, a group representing former California computer workers, claiming that the regulation violates the Immigration and Nationality Act and asking the court to vacate the H-4 rule allowing spouses to work in the UnitedStates.

courthouse-1330873-mSave Jobs USA backs up its claims by stating there is no statute that authorizes H-4visa holders to work in the United States and that in promulgating this rule, theDepartment of Homeland Security has exceeded its authority. The effect of this, asmuch of the complaint is focused on, is the increase in foreign competition, which inturn burdens U.S. citizens by increase the difficulty of finding a job. Specifically itstates the new rule will increase the foreign workforce by 179,000 in the first yearand 55,000 following years. Save Jobs USA goes on to list three instances of SaveJobs USA members who have been replaced by H-1B visa holders.

Save Jobs USA claims the Immigration Nationality Act has provisions that aredesigned to protect American workers. For instance, the Labor Conditions Application (LCA) limits the number of visas to be issued to foreign workers.However, allowing H-4 holders to obtain work, works against the protection thatlimits the amount of foreign workers

The complaint also cites the Department of Homeland findings that the new H-4regulation will make the H-1B visa more attractive and cause employers to retain the H-1B workers that are already working for United States companies. Save JobsUSA warns that an increase in H-1B workers staying in the United States in conjunction with an influx of new H-1B workers coming to the United States each year, will only work against the United States citizen’s ability to find viable employment.

Another issue raised by Save Jobs USA is a website that contains postings for foreignworkers in the United States on H-4 visas. The website already has 15 job postinglisted, all for computer jobs. Therefore even though the new regulation allowing H-4 workers to work has yet not gone into effect, there is already increasedcompetition for jobs when these jobs could potentially go to U.S. citizens.

Save Jobs USA is asking the court to vacate the H-4 rule and prevent H-4 visa holdersfrom working in the United States. If they win this could upset the projected179,000 foreign workers who would apply for work under this new provision in thenext year. The United States government will be defending this case and will likelyargue it does have the power to pass this regulation.

The arguments raised by Save Jobs USA are very narrow in scope and does not consider the broader economic benefits of the regulation. Many families will benefit from the regulation because it will allow both parents to work outside of the home and bring in additional income. Additionally allowing spouses of H-1B holders to gain work authorization will increase the number of highly-skilled workers in the workplace. This will benefit many U.S. companies that require highly-skilled workers, particularly in the technology sector. Save Jobs USA’s arguments are narrow and are only focused on the increased competition and fails to address any of the many benefits this regulation provides.

Contact the Law Office of Sweta Khandelwal for updates on this case or to discusswork authorization for H-4 visa holders or any other immigration questions.Attorney Khandelwal is an immigration attorney located in the Silicon Valley.

Cited Sources:

Save Jobs USA v. U.S. Dep’t of Homeland Security, Filed April 23, 2015


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Change of H-1B Workplace Requires Amended Petition

H-1B holders working at multiple worksites must have a Labor Condition Application (LCA) on file for each worksite. Last week the USCIS Administrative Appeals released a decision that states any geographic change in the workplace listed on the LCA accompanying all H-1B visas requires filing an amended application. Also, any material change in the terms and conditions of the employment requires the filing of an amended H-1B with a new LCA.

Matter of Simeio Solutions, Inc., the case decided last week, reinforced this requirement. In the instant case, a foreign worker in India obtained an H-1B and applied for the visa at the United States Embassy in New Delhi. During the interview at the embassy the applicant indicated that he performed services not reflected in his application. This prompted an investigation by the USCIS, which included a visit to the worksite.

The USCIS investigators were unable to locate the worksite as listed on the LCA. After contacting the petitioner’s director of operations it was revealed that the worksite had moved to an employee’s home. Ultimately the court concluded that a change in worksite location is a material change in the application and requires the filing of an amended application.

Many United States employers require their employees to conduct work at multiple worksites. According to the State of California Employment Development Department, approximately 6% of employers in California conduct business at multiple work locations. These employers make up about 44% of California’s total employment. This suggests that many workers in the United States may work for a single employer at multiple workplaces. Foreign workers may also be expected to work at multiple worksites.

Foreign workers in the United States should take note of the worksite listed on their LCA and ensure it matches their place of employment. Multiple worksites can be listed on a single LCA or multiple LCAs can be filed with a single H-1B application. All LCAs should accompany the H-1B application. If the Immigration department conducts an unscheduled audit of a workplace listed on the H-1B application, and finds that the foreign worker is not performing services there, it may have serious immigration consequences.

The USCIS reserves the right to audit/inspect the worksites listed on an H-1B petition. Audits can occur at anytime and can occur without notice. Employers must ensure that the foreign workers are working in accordance with their H-1Bpetitions that includes the LCA.

If a foreign worker is assigned to a different work location that is not listed on the LCA that accompanied his/her H-1B application, an amendmentmust be filed. Contact the Law Office Of Sweta Khandelal today to discussfiling your amended application. Attorney Sweta Khandelwal is an immigration attorney with extensive experience in employment based immigration applications.

Cite Sources:

Matter of Simeio Solutions, Inc., April 9, 2015, U.S. Department of Homeland Security,USCIS Administrative Appeals Office.

Multiple Worksite Report, State of California Employment DevelopmentDepartment, 2014



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Foreign Students and the H-1B Cap Gap

With the school year coming to a close, it’s time for foreign students to start thinking on ways to continue to remain in the United States, following the conclusion of their academic programs. Some college students on F-1 visas who are authorized to work pursuant to the Optional Practical Training (OPT) program are able to find jobs in their field of study and may continue to remain in the US their stay on an H-1B visa. However, moving from an F-1/OPT directly to H-1B can create a gap of time between the expiration of the OPT and before the H-1B visa starts. Fortunately there is a Cap-Gap, which allows applicants with pending or approved H-1B’s to extend OPT work authorization to cover this gap.

What’s required for an F-1 extension?

students-1197349-mIf you’ve secured an employer that will apply for an H-1B on your behalf, it’s essential that the H-1B is timely filed. The H-1B should be applied while the OPT is still in effect.

If the H-1B application is selected in the lottery and approved, an automatic F1/OPT extension will take place. On October 1st when the H-1B visa can officially take effect, the applicant should request a change of status. This will allow for a smooth transition from F-1/OPT to H-1B.

Things to watch out for

  • If the H-1B application is not chosen in the CAP or the H-1B application is denied, the applicant will be granted a 60-day grace period. During this time the applicant must make plans to leave the United States.
  • Once an applicant enters the 60-day grace period, the applicant is no longer authorized to legally work inside the United States.
  • Travel abroad during the OPT period is allowed, however the applicant will not be able to re-enter the United States without a valid F-1 visa, as stamped on the passport. Students are advised to have their latest I-20’s, as well as proof that they are employed pursuant to their OPT, in the event of foreign travel. If the applicant does not have a valid F-1 Visa, the applicant must apply for an H-1B visa at consular post outside of the United States before attempting to re-enter.
  • F-1 extensions are generally granted until September 30th. However, the H-1B employer may intend for employment to start later than October 1st which can create another gap. Should this happen, the Designated School Official of the student on F-1 can fix this gap. It is important to pay close attention to the start day of H-1B visa and end date of F-1.
  • Getting laid off by an H-1B employer before H-1B visa takes effect does not mean the applicant has forfeited his visa and must exit the United States. The student may be able to recover unused Optional Practical Training and continue working in the United States, as long as several additional requirements are met.

To ensure you are eligible for F-1 extension under cap gap it is important to be cautious of timelines and required paperwork. Because there is a transition from one visa to another, accuracy is important to ensure the applicant does not find himself in the United States without a valid visa status. Consulting an attorney is a good idea to ensure all filings are done correctly.

Contact the Law Office of Sweta Khandelwal today to discuss F-1 student visas, H-1B’s the Cap-Gap or any other immigration questions you have. Ms. Khandelwal is an experienced immigration attorney located in the Silicon Valley.


Cited Sources:

Extension Of Post Completion Optional Practical Training (OPT) and F-1 Status forEligible Students under H-1B, USCIS, March 15, 2013



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