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Update on H-4 EADs and Foreign Student Litigation and Proposed Changes on Premium Processing and Fil Update on H-4 EADs and Foreign Student Litigation and Proposed Changes on Premium Processing and Fil

Update on H-4 EADs and Foreign Student Litigation and Proposed Changes on Premium Processing and Filing Fees

Lawsuit challenging H-4 EAD regulation to proceed

Certain spouses of H-1B specialty occupation workers with H-4 derivative status are permitted to apply for Employment Authorization Documents (“EADs”) if their principal H-1B spouses have reached certain milestones in the employment-based green card process. While the Trump administration has announced plans to rescind such H-4 employment authorization, a group of technology workers sued to challenge the validity of the original 2015 regulation granting H-4 holders the ability to apply for EADs. A federal court found in 2016 that the group did not have standing to challenge the rule. However, the workers’ group, Save Jobs USA, appealed, and the U.S. Court of Appeals for the District of Columbia recently held that the group does have standing, finding that the 2015 H-4 EAD regulation subjects the members of the group to an increase in competition for technology jobs.

In essence, the appeals court has allowed Save Jobs USA’s suit to proceed on the merits; however, pending a formal rule change or ruling on the pending litigation in the government’s favor, the H-4 EAD regulation remains in effect at this time.

USCIS proposes substantial changes to immigration filing fees and Premium Processing

USCIS has published a proposed regulation that would dramatically adjust the filing fees for many immigration filings, including employment-based petitions and applications. Highlights include increasing fees for popular non-immigrant filing fees from a base fee of $460 for all categories to the following: E-1/E-2, $705; H-1B, $560; L-1, $805 and O-1, $715. Similarly, filing fees for Employment Authorization Documents and Advance Parole applications will no longer be included in the base filing fee of the I-485 Application for Adjustment of Status, and the filing fee for N-400, Application for Naturalization will nearly double to $1170 from $640. The proposed rule also intends to alter the operation of the premium processing service to allow USCIS to adjudicate cases submitted with premium processing requests in fifteen (15) business days, rather than fifteen (15) calendar days, effectively increasing the processing window from approximately two weeks to three. Public comments on the proposed rule are being accepted through December 16, 2019 with an effective date anticipated in as little as sixty (60) days.

F-1 Unlawful Presence Policy and OPT Litigation Updates

Several U.S. colleges and universities sued the federal government last year to prevent enforcement of a stringent new USCIS policy on calculation of “unlawful presence” for F, M and J student visa holders. In May 2019, a federal court issued a preliminary nationwide injunction preventing the policy’s enforcement. The policy being challenged would retroactively apply significant penalties for minor or inadvertent status violations back to the time the violation began as opposed to the date of notice to the student of the violation. While the litigation remains on hold, USCIS has consistently determined that Curricular Practical Training (CPT work authorization) completed at the same degree level as any previously completed 12-month period of Optional Practical Training (OPT) is unlawful and not compliant with federal regulations. If the government prevails and the stalled unlawful presence policy goes into effect, the penalties for such activity will be applied retroactively resulting in multi-year bars from the U.S. for such students [at least three (3) years for unlawful activity between 6 months and a year and ten (10) years for unlawful activity exceeding a year].

In the Washtech lawsuit regarding Optional Practical Training work authorization for F-1 students after they graduate from their degree programs, a federal court decided this past July that a group of technology workers who are challenging the government’s authority to provide OPT can proceed. Most recently, a group of 118 public and private universities and colleges told the federal court that providing foreign students with practical training work authorization promotes diverse student bodies, helps maintain the universities’ research excellence in STEM and other fields and contributes to the growth of the U.S. economy.

We will continue to monitor developments on these topics and share updates with you. Employers with questions or concerns about this or any immigration matter may contact Jenifer M. BrownChristl Glier, Scott Kuhagen and/or your regular immigration point of contact at Ice Miller LLP.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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