Shihab Immigration News: February 2015

The Law Firm of Shihab & Associates
Shihab Immigration News: February 2015
Gus M. Shihab
Our purpose here is to bring you the latest and most relevant immigration news. Immigration law is in constant flux, and we want to help you stay on the cutting edge of the field.

Gus M. Shihab, Esq.
H-1B Visa Cap
March 6, 2015
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Whether you are an executive employing foreign professionals, a scientist, a professor, a small business owner, a multinational manager, or a U.S. citizen pursuing an immigration case for a relative or loved one, our lawyers possess the legal skills and sensitivities needed to achieve your goals. It is of utmost importance that you, the client, are assured that your immigration lawyer has your best interests in mind and at heart, and that he or she will conclude your matter quickly, competently, and in an affordable manner. Gus M. Shihab, Esq. and the attorneys at The Law Firm of Shihab & Associates hold these values at the forefront.
immigration Services
As announced under the President's immigration executive action plan, USCIS is expanding eligibility for Employment Authorization Documents (EADs) to dependent spouses of H-1B visa holders who are also seeking permanent residence.

In order to receive the EAD, the H-4 spouse must prove that the H-1B visa holder either has an approved petition for immigrant worker (I-140) for which the priority date is still not current--or has extended the H-1B visa beyond the six years pursuant to the provisions of the American Competitiveness in the Twenty First Century Act of 2000 (otherwise known as AC21).

On May 26, 2015, those H-4 spouses will be able to file form I-765. If the aforementioned requirements are met and the EAD is approved, the H-4 visa spouse will be able to work in the U.S. with virtually no restrictions.

On February 16th, a judge in Texas put an indefinite hold on the President's planned expansions of the deferred action program for certain undocumented immigrants. Partially planned to begin last week, they would eventually cause the program to ease the fear of deportation for up to five million additional undocumented immigrants. However, when the context of the situation is considered, including the basis of this ruling, one should come to find that it is only a minor setback. We believe it is due more to political frustration than legal violations.

We have also published an article that talks specifically about the errors in this ruling, independent of the circumstances surrounding it. To read this article, click here.

(Our Monthly Update)
Following its monthly release, we break down and analyze the Visa Bulletin. This document is how the State Department announces who is eligible to petition for permanent residence. We also provide other relevant case processing time information.


The biggest surprise here is that India's EB-2 date moved by 16 months to 1/1/2007. This appears to be part of an effort to fill higher visa categories earlier in the year. Further advancement is anticipated. Now may be the time for an upgrade petition from EB-3, as that date is still struggling. (It just now reached 2004.) EB-3 filers (that may now be qualified for EB-2) with priority dates in 2006 would be well advised to start the process of an upgrade soon (to beat potential retrogressions).

The Chinese EB-2 date also made a strong advancement (when compared to its recent slow activity) to 9/1/2010. This could be due to lowered Chinese demand for family-sponsored visas, the desire to fill higher visa categories earlier in the year, or some downgrade petitions to EB-3. The EB-3 date is still (over a year) ahead of its EB-2 counterpart. There is still time for some to take advantage of a downgrade petition to EB-3, but this must be done fast for it to not be counterproductive. Chinese demand for EB-5 isn't overtaking supply as fast as originally expected, but a cutoff is still expected by July.

All Other Areas
There continues to be no danger of additional nation-specific cutoff dates for EB-1, 2, or 5. Further, the cutoff date for the rest of the world's EB-3 category has advanced to 6/1/2014. This may spur demand from one nation enough for it to have its own (and further behind) EB-3 date by the end of the year: the Philippines. Filipinos with EB-3 intentions should thus begin the process as soon as possible.

Read more here...  


Above is an analysis of Employment Based immigration categories. To view our analysis of Family categories, click here.

We recently handled an H-1B case that dealt with an issue for which precedent sheds no light. The question posed to us was the following: how does an employer avoid being legally required to pay an H-1B employee that has fled the area? For our client employer, the fact that this question was without answer could have led to serious LCA violations due to matters out of its control.

LCA regulations require payment to the foreign national at or above the DOL's prevailing wage throughout H-1B employment. Exceptions can be made, but in order for this to happen, case law seems to require that the employer provide evidence that is often unavailable when it is most needed. The case we handled is nearing a solution, but the greater issue remains unresolved.