J-1 Skills List Update 2024

Big Policy Change Retroactively Eliminates 2 Year Home Residency Requirement for 35 Countries Including India, China and Brazil

The State Department has updated the Exchange Visitor Skills List effective December 9, 2024 and retroactively eliminated the 2-year home residency requirement for J-1 visa holders from 35 more countries.

These are the first changes to the Skills List since 2009 and will simplify immigration pathways for professionals and keep top international talent in the U.S.

This 2024 Skills List will be used by consular officers to determine the 2 year home country physical presence requirement in section 212(e) of the INA when issuing J exchange visitor visas.

This means that citizens of these countries who have already participated in US exchange programs will no longer be subject to the 2 year rule based on the Skills List.

These are in the Federal Register and have retroactive effect so many foreign nationals will be able to advance their careers or remain with loved ones in the US.

What’s the Big Deal

The Skills List has changed to reflect US immigration policy shifting with the global economy. By removing barriers for high skill professionals the US can attract and retain global talent and stay competitive in key industries.

  • For Individuals: Easier access to career opportunities and long term residency pathways.
  • For Employers: More flexibility in hiring and retaining international talent.

Let’s first understand the J-1 visa and the 2 Year Residency Rule.

J-1 Visa

The J-1 Exchange Visitor Program allows foreign nationals to come to the US for educational, cultural and professional exchange opportunities. These exchange visitor programs are designed for foreign nationals to engage in various professional and cultural activities in the United States. Common categories of J-1 visas include:

  • Interns and Trainees
  • Visiting Professors and Scholars
  • Au Pairs
  • Summer Work and Travel Participants

The 2 Year Rule

Some J-1 visa holders are required to go back to their home country (or country of last residence) for at least 2 years after completing their program. During this time they are not allowed to:

  • Apply for an H, L or K visa or an immigrant visa (Green Card).
  • Change to another nonimmigrant status while in the US.
  • Adjust status to lawful permanent resident in the US.

When Does the 2 Year Rule Apply?

A J-1 visa holder is subject to the 2 year rule if they:

1. Graduate Medical Training

  • If they use a J-1 visa to participate in graduate medical training (e.g. residency or fellowship) in the US.

2. Government Funding

  • If the individual’s exchange program is funded, fully or partially, by the US government, their home country’s government or an international organization. Examples include:
  • Fulbright fellowships.
  • Funding from US agencies like the National Institutes of Health (NIH) or National Science Foundation (NSF).

3. Skills List Designation

  • If the individual’s field of study or research is on their home country’s Skills List. Updates to the Skills List can impact the two-year home residence requirement for J nonimmigrant exchange visitors, potentially allowing them to seek other visa options and remain in the U.S. long-term, particularly in academic and research settings.

The Skills List identifies specific fields that are critical to their country’s development and encourages professionals in those fields to return and apply their skills.

What is the Exchange Visitor Skills List?

The Exchange Visitor Skills List is a list of countries and fields of expertise that are critical to a country’s development. The implications of J status for nonimmigrant exchange visitors in relation to the Skills List are significant, particularly concerning the two-year home residence requirement. Individuals from countries on this list who participated in J-1 exchange programs were required to:

  • Go back to their home country for 2 years after completing their program (2 Year Residency Requirement)
  • Meet this requirement (or get a waiver) before applying for US immigration benefits such as:
    • Permanent residency (Green Card).
    • Certain visa categories, H-1B (specialty occupation) or L-1 (intra-company transfer), K-1 fiancée

This requirement is to ensure that participating countries benefit from the expertise their citizens gain while in the US.

The latest update removed the 2 year residency requirement for 34 countries, leaving 27 countries still subject to the rule.

Why is the Skills List important?

The Skills List serves two purposes:

Global Development:

  • By requiring exchange visitors to go back to their home countries, it ensures countries benefit from their citizens’ expertise.

U.S. Diplomacy:

  • Exchange programs promote mutual understanding and cooperation between the US and other countries.

How to use the Exchange Visitor Skills List

Step 1: Is Your Country on the Skills List?

  1. Find Your Country:
    • Go to the Skills List by Country page to see if your country is on the list.
    • Check the country on your Form DS-2019.
    • Changes to the Skills List can affect the two-year home residence requirement for nonimmigrant exchange visitors, allowing those from countries removed from the list to more easily participate in the J-1 program.
  2. If You Were a Permanent Resident Elsewhere:
    • If you were a permanent resident in a country other than your nationality when you entered the US, use the Skills List for that country (as stated on your Form DS-2019).
    • Outcome:
      • Yes, My Country Is on the Skills List:
        • Go to Step 2.
      • No, My Country Is Not on the Skills List:
        • You are not subject to the 2 year requirement based on the Skills List.
        • But you may still need to meet the requirement if your program was:
        • Funded by the US or your home country.
        • Involved graduate medical education or training.

Step 2: Is Your Field of Study Included?

  1. Find Your Field:
    • Check your country’s Skills List to see if your field of study is listed.
  2. Broad Subject Areas:
    • If your field isn’t listed, look for broader subject areas (e.g., “engineering”, “healthcare”). Fields not listed directly often fall under larger categories in the Master Skills List.
    • Outcome:
      • Yes, My Field is on the Skills List: You must meet the 2 year home-country physical presence requirement.
      • No, My Field is Not on the Skills List: You are not subject to the 2 year requirement based on the Skills List. But government funding or medical training may still require this.

Background

The Skills List is in line with US foreign policy goals as stated in:

  • The Fulbright-Hays Act (1961):
    • To promote international cultural and educational exchange.
  • The United States Information and Educational Exchange Act of 1948:
    • To encourage mutual understanding and peaceful relations among nations.

History of the Skills List

Updates to the Skills List can significantly impact J-1 visa holders, especially when considering the previously published skills list and its effect on the two-year home residence requirement.

The State Department will review and update the Skills List every 3 years from now on.

Administrative Notes

Exempt from Public Comment

The revised Skills List is exempt from public notice and comment under the APA because it is a foreign affairs function. Public input could:

  • Complicate Diplomacy:
    • Public disputes over the designations could harm US relations with the countries involved.
  • Delay Implementation:
    • Foreign policy decisions are sensitive and require quick action.

Why Was the Skills List Updated?

This is the first major update to the Skills List in 15 years. The State Department re-evaluated the criteria to reflect global changes in economic, educational and technological development.

Reasons for Removal

Economic Growth:

  • Countries with higher per capita GDP are considered to have fewer skill shortages.
  • Example: China and India have been removed because of the growth of their economies and education systems.

Country Size:

  • Larger countries with more resources are assumed to be able to develop their own skilled workforce.

Migration Trends:

  • Countries with significant outbound migration are still included to avoid the “brain drain”.

Progress in Key Sectors:

  • Countries with progress in healthcare, education, technology and infrastructure no longer need external expertise in certain fields.
  • Example: The Philippines is still on the list because of ongoing needs in specific fields, despite some economic growth.

How does the Department decide which countries are on the list?

The Department uses objective, data-driven criteria to evaluate a country’s development and workforce needs:

A. Low-Income Countries

  • Definition: Countries with a per capita GDP below $7,500 (2023 dollars, PPP).
  • Reason: These countries often lack the financial and institutional resources to develop a highly skilled workforce, so external expertise is needed.

B. Middle-Income Countries

  • Definition: Countries with a per capita GDP between $7,500 and $15,000.
  • Additional Factors:
    • Small Population or Size: Smaller countries may not have enough educational or professional opportunities.
    • Migration Trends: Countries with significant emigration lose skilled talent and have gaps in fields like healthcare or technology.

C. Migration Challenges (Brain Drain)

  • Countries that have lost the most talent over the past 10 years are prioritized.
  • Example: Countries with high emigration of medical professionals need those skills to support their healthcare systems.

Why these criteria matter

These thresholds reflect global development goals. They take into account:

  • Standard of Living: Countries with lower GDP per capita need skilled professionals to improve economic and social progress.
  • Human Capital Development: The Skills List keeps expertise in areas where it matters most.

2024 J-1 Skills List Highlights

1. Countries Removed from the Skills List

35 countries were removed in total, reducing the number of J-1 visa holders subject to the 2-year residency requirement

India, Brazil and China were removed from the Skills List and they send the most J-1 exchange visitors to the US.

Countries removed from the Skills List:

  • Albania
  • Algeria
  • Argentina
  • Armenia
  • Bangladesh
  • Bolivia
  • Brazil
  • Chile
  • China
  • Colombia
  • Costa Rica
  • Dominican Republic
  • Gabon
  • Georgia
  • Guyana
  • India
  • Indonesia
  • Kazakhstan
  • Laos
  • Malaysia
  • Mauritius
  • Namibia
  • Oman
  • Paraguay
  • Peru
  • Romania
  • Saudi Arabia
  • South Africa
  • South Korea
  • Sri Lanka
  • Thailand
  • Trinidad and Tobago
  • Turkey
  • United Arab Emirates
  • Uruguay

2. Countries still on the Skills List

45 countries remain on the list. Here they are:

  • Belize
  • Benin
  • Burkina Faso
  • Burma (Myanmar)
  • Cambodia
  • Cameroon
  • Cape Verde
  • Congo, Dem. Rep.
  • Djibouti
  • Ecuador
  • El Salvador
  • Eritrea
  • Eswatini
  • Ethiopia
  • Fiji
  • Gambia, The
  • Ghana
  • Guatemala
  • Haiti
  • Honduras
  • Jamaica
  • Kenya
  • Kosovo
  • Lebanon
  • Liberia
  • Malawi
  • Mali
  • Mauritania
  • Mozambique
  • Nepal
  • Nicaragua
  • Niger
  • Nigeria
  • Palestinian Authority (West Bank and Gaza)
  • Philippines, The
  • Rwanda
  • Senegal
  • Tajikistan
  • Tanzania
  • Timor-Leste
  • Togo
  • Tonga
  • Venezuela, RB
  • Yemen, Rep. Zambia

This list is based on the countries designated as needing specialized knowledge or skills for their development by the U.S. Department of State. Nationals of these countries participating in the J-1 Exchange Visitor Program in the designated fields are subject to the 2-year home-country physical presence requirement.

3. Retroactive

The changes apply to current and former J-1 visa holders.

  • If your country is no longer on the list, the 2-year residency requirement no longer applies to you even if it did at the time of your admission.
  • Former J-1 participants who were subject to the rule based on the 2009 Skills List can now benefit from the retroactive removal of their country.

4. Unchanged Requirements for Other Reasons

The Skills List update does not affect J-1 visa holders subject to the 2-year requirement for:

  1. Funding from U.S. or home country governments: For example, Fulbright or government-funded programs.
  2. Graduate medical education or training: For example, ECFMG-sponsored programs.

Even if a country is no longer on the list, the 2-year requirement may still apply for the above reasons. Additionally, the requirement may still apply if an individual has received graduate medical education in the United States.

5. No Skills Changes

The countries changed, but the fields of expertise didn’t.

6. Easier Career Advancement

  • Researchers and trainees can stay in the U.S. and continue their careers uninterrupted.
  • J-1 holders from historically oversubscribed countries like India and China can now compete more easily for H-1B visas.

7. No Waiver Needed:

Previously, these individuals would have had to apply for a J-1 waiver to waive the home residency requirement. This process is long and painful, and is no longer necessary for those from the removed countries.

8. For Researchers and Scholars:

  • J-1 is commonly used by postdoctoral researchers in U.S. universities and research institutions.
  • Many institutions rely on international talent, with over 50% of postdoc positions filled by foreign nationals.
  • By removing the Skills List for many countries, international researchers can more easily transition to long-term opportunities in the U.S. and contribute to science, technology and education.

What Should J-1 Visa Holders Do?

The new Skills List brings big benefits to J-1 participants from removed countries. Here’s what you should do.

1. Check Your Country on the 2024 Skills List

  • See if your country is on the list.
  • If not, the Skills List no longer applies to you.

2. Other Factors That May Apply

  • Are you subject to the 2-year rule for:
    • Government funding: Programs funded by the U.S. or your home country.
    • Graduate medical education/training: Sponsored by organizations like ECFMG.

3. Advisory Opinion:

If unsure, you can request an Advisory Opinion from the Waiver Review Division. This will determine if the 2-year foreign residence requirement applies to your case. See travel.state.gov for more information

4. Stay in the U.S.

Foreign nationals no longer subject to the 2-year rule can:

  • Change Status: Switch from J-1 to another nonimmigrant status (H-1B or L-1) without leaving the U.S.
  • Apply for a Green Card: Seek permanent residency (family or work) without fulfilling or waiving the 2-year requirement.

Who is affected by the 2024 Skills List?

1. J-1 Holders Admitted or Acquiring Status On or After December 9, 2024

  • If your country is on the 2024 Skills List:
    • You are subject to the 2-year home residency requirement.
  • If your country is not on the 2024 Skills List:
    • You are exempt from the Skills List.

2. J-1 Holders Admitted or Acquiring Status Before December 9, 2024

  • If your country was on a previous Skills List but is no longer on the 2024 Skills List:
    • You are no longer subject to the 2-year requirement.
    • Example: If you entered the U.S. in 2020 and your country is no longer on the list, the rule does not apply retroactively to you.
    • For such applicant whose country has changed status on the Skills List, the procedures for evaluating applications will consider whether they are still subject to the two-year requirement based on previous listings or other factors.

3. Pending Waiver Applications

  • Those with pending waiver applications where the country was on the 2009 Skills List but is now removed in the 2024 update:
    • The Department will review your application to see if the requirement applies for other reasons (e.g. funding or medical training).
    • If not, they will let you know.

Who is Not Affected by the 2024 Skills List?

The 2024 Skills List does not apply to J-1 exchange visitors subject to the 2-year rule for other reasons:

  1. Government or International Funding
    • If your program was funded by the U.S. government, your home government or an international organization (e.g. Fulbright programs).
  2. Graduate Medical Training in the U.S.
    • If you were sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) for medical training.

If either of these apply to you, the 2-year rule still applies and you must fulfill the requirement or apply for a waiver.

If Your Country is Still on the List:

  • You may still be subject to the 2-year home residency requirement.
  • But you can apply for a J-1 waiver under these circumstances:
    • Government sponsorship waiver: A U.S. government agency needs you for a critical project.
    • Hardship waiver: Returning to your home country would cause undue hardship to a U.S. citizen spouse or child.
    • Persecution waiver: Returning would pose a significant risk to your safety.
    • No Objection Waiver: If your country issues a “No Objection Letter” stating it has no objection to you not fulfilling the 2 year residency requirement (not available to Foreign Medical Graduate J-1s).

See J-1 Waiver Division for more information.

Impact on Employers & U.S.

  1. Fewer Barriers to Hiring  Global Talent
    • Employers in STEM, healthcare and education can hire skilled workers and fill gaps in the workforce without the 2-year rule headaches.
    • Companies can sponsor H-1B or Green Cards for eligible candidates more easily.
  2. More Recruitment Opportunities
    • Removal of residency restrictions allows international researchers and scientists to accept J-1 positions knowing they can stay in the U.S. longer.
  3. J-1 for Start-Ups and Smaller Entities
    • J-1 for Start-Ups and Smaller Entities
  4. Innovation:
    • Highly skilled workers, especially researchers and scientists, can stay in the U.S. and contribute to science, technology, healthcare and education.
  5. Competitiveness:
    • By removing the obstacles, U.S. employers can attract and retain the best and brightest and keep the U.S. at the top of the innovation heap.
    • Attract More Researchers/Scholars. This makes the U.S. an even more attractive destination for international scholars and researchers.

How About Institutions?

  • International offices at universities and research institutions should review the 2024 Skills List to advise students, researchers and scholars transitioning to other immigration statuses.

What’s Ahead for the J-1 Skills List?

The 2024 list is the first update in 15 years. The State Department plans to review the list every 3 years going forward to keep it current and aligned with U.S. foreign policy.

Two-Year Home-Country Physical Presence Waiver

If you are subject to the requirement but can’t fulfill it, you can apply for a waiver. Here are common scenarios:

  1. Government Sponsorship
    • A U.S. government agency can request a waiver for you if your work is critical to a project.
  2. Persecution
    • If returning to your home country would pose a significant risk to you, you may qualify for a waiver.
  3. Hardship
    • You can apply for a waiver if returning to your home country would cause undue hardship to a U.S. citizen spouse or child.
  4. No Objection Statement
    • Your home country can issue a letter stating it has no objection to you not fulfilling the 2 year requirement.

FAQS: 2024 J-1 Skills List & 212(e)

General

Countries and Skills

Retroactive

Eligibility and Immigration Options

Waivers

Impact on Employers and Institutions

Policy and Future Updates

Miscellaneous

Need More Information or Help?

Contact an Immigration Expert

Contact an Immigration Expert

The 2024 Skills List is a game changer in U.S. immigration policy. Many J-1 visa holders are now free and new opportunities are opening up. For researchers, scientists and academic institutions, this is a big barrier remover.

If you are impacted or need help, consult an immigration attorney to discuss your options and U.S. immigration regulations.

If you have questions about the 2024 Skills List and your J-1 or need J-1 waiver help, contact an immigration attorney. Immigration Attorneys like those at the Herman Legal Group, serve:

  • Institutions.
  • Individuals.
  • Postdocs, researchers, scientists.

Expert Legal Help At Herman Legal Group, LLC

24/7 Support, Just A Call Away!

January 2025 Visa Bulletin

January 2025 Overview

The US Department of State has released the Visa Bulletin for January 2025. If you’re waiting for a green card, this is a must-read. This bulletin shows the movement of green card applications across all categories so you can see where you are in line and what’s next.

The January 2025 Visa Bulletin has forward movement in several employment based categories. EB-1 Final Action Dates are unchanged, but EB-2 and EB-3 have movement, depending on your country of chargeability. Employment-based preference limits are set by law to manage the visa issuance process and ensure fair distribution among applicants based on priority dates and oversubscription.

Updates:

Employment Based Categories

  • EB-1: No movement in Final Action Dates for all countries.
  • EB-2 & EB-3: 2 weeks to 2 months movement in employment based preference visas.
  • USCIS Dates for Filing: Same as December.
    • Eligible foreign nationals can file adjustment of status applications if their priority dates are before the dates listed. Understanding the different employment based preferences, such as Priority Workers, Skilled Workers, and Employment Creation categories, is crucial for applicants as each category receives a specific percentage of global employment-based preference levels.
  • India and China: Both countries have the longest wait times in most categories due to high demand and limited visa availability.
  • Small Movement: EB2 and EB3 categories are moving slowly to balance visa allocations without going over the annual limits. The January 2025 Visa Bulletin shows positive advancement in various employment based visa categories, particularly for Indian applicants in categories like EB-2.
  • EB5 Notes:
    • Set-aside categories are moving, which could impact unreserved visas.
    • Watch for policy changes as the year goes on.

Family Based Categories

  • The January 2025 Visa Bulletin highlights advancements in various family sponsored categories, including F1 (unmarried sons and daughters of US citizens) which moved to November 22, 2015.
  • F3 (married sons and daughters of US citizens) moved to July 1, 2010.
  • F-3 moved 3 months for most countries.
  • F4 (siblings of US citizens) moved to August 15, 2006.
  • F-4 for the Philippines moved 5 months and 3 weeks.
  • Other family based categories didn’t move.

EB Visa Category Analysis

Final Action Dates

These dates determine if an applicant can get an immigrant visa or adjustment of status approval.

EB-1

  • India: February 1, 2022 (no change)
  • China: November 8, 2022 (no change)
  • All other countries: Current (no backlog)

Meaning: EB1 demand for India and China continues to block movement, while others are current (no backlog).

EB-2

  • India: 2 months to October 1, 2012.
  • China: 1 month to April 22, 2020.
  • All other countries: 2 weeks to April 1, 2023.

Meaning: India and China get a little movement, others get forward movement.

EB-3 Professionals and Skilled Workers

  • India: 3 weeks to December 1, 2012.
  • China: 2 months to June 1, 2020.
  • All other countries: 2 weeks to December 1, 2022.

Meaning: Good news for all EB3 applicants, especially for India and China.

EB-3 Other Workers

  • India: 3 weeks to December 1, 2012.
  • China: January 1, 2017.
  • All other countries: 1 week to December 8, 2020.

Meaning: No movement for China in this category means high demand and limits. India and others get forward movement.

EB-4 Religious Workers

All countries: 01.Jan.2021 (no change)

Meaning: No movement means limited visas and steady demand in EB4.

Watch for Legislative Updates: The EB-4 Non-Minister Religious Worker category, which includes certain religious workers, will expire on December 20, 2024. If not reauthorized by congress, this category will be unavailable after December 21, 2024. If reauthorized, Final Action Dates will be the same as the general EB-4 category. Applicants in the EB-4 Non-Minister Religious Worker category should monitor for congressional action to reauthorize the program.

Fifth Preference (EB5)

EB-5 Unreserved Categories (Regional and Non-Regional Center)

  • China: July 15, 2016.
  • India: January 1, 2022.
  • All other countries: Current

EB-5 Set-Asides (Rural, High Unemployment, Infrastructure)

  • All countries: Current

Meaning: The State Department expects an increase in EB-5 Rural, High Unemployment and Infrastructure set-aside applications. To prevent exceeding annual limits, Dates for Filing and Final Action Dates may be introduced for these categories in FY 2025.

Dates for Filing (Ready for Adjustment of Status, or Consular Processing at NVC)

USCIS uses these dates to determine eligibility to file adjustment of status applications.

The process of determining visa availability by USCIS and the Department of State involves managing the supply and demand of visas. They assess factors such as the number of visas available and individual priority dates to provide clarity and predictability for applicants seeking to adjust their status or obtain immigrant visas.

EB-1

  • India: April 15, 2022.
  • China: January 1, 2023.
  • All other countries: Current.

EB-2

  • India: January 1, 2013.
  • China: October 1, 2020.
  • All other countries: April 1, 2023.

EB-3 Professionals and Skilled Workers

  • India: June 8, 2013.
  • China: November 15, 2020.
  • All other countries: December 1, 2022.

EB-3 Other Workers

  • India: June 8, 2013.
  • China: January 1, 2018.
  • All other countries: December 8, 2020.

EB-4 Religious Workers

  • All Countries: February 1, 2021

EB-5 Unreserved Categories

  • India: April 1, 2022.
  • China: October 1, 2016.
  • All other countries: Current

EB-5 Set-Asides

  • All countries: Current

Family-Based Visa Category Analysis

Final Action Dates

These dates determine if an applicant can get an immigrant visa or adjustment of status approval.

F-1 Unmarried Sons and Daughters of U.S. Citizens

  • F1 Mexico will remain at November 22, 2004
  • F1 Philippines will advance by one week to March 8, 2012
  • F1 All other countries will advance by one month to November 22, 2015

F-2A Spouses and Children of Permanent Residents

  • F2A Mexico will advance by one month to May 15, 2021
  • F2A All other countries will remain at January 1, 2022

F-2B Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents

  • F2B Mexico will remain at July 1, 2005
  • F2B Philippines will remain at October 22, 2011
  • F2B All other countries will advance by three weeks to May 22, 2016

F3 Married Sons and Daughters of U.S. Citizens 

  • F3 Mexico will advance by one month to November 22, 2000
  • F3 Philippines will advance by two months to November 8, 2002
  • F3 All other countries will advance by two months and sixteen days to July 1, 2010

F-4 Brothers and Sisters of Adult U.S. Citizens

  • F4 Mexico will remain at March 1, 2001
  • F4 Philippines will advance by three months to May 1, 2004
  • F4 India will advance by one month to April 8, 2006
  • F4 All other countries will remain at August 1, 2007

Dates for Filing (Ready for Adjustment of Status, or Consular Processing at NVC)

USCIS uses these dates to determine eligibility to file adjustment of status applications.

Here are the updates for family-sponsored green cards:

  • F-1: Unmarried Children (21+) of U.S. Citizens
    • No movement for all countries.
    • Example:
      • Philippines: April 22, 2015.
  • F-2A: Spouses/Unmarried Children (Under 21) of Green Card Holders
    • No movement for all countries, cut-off date July 15, 2024.
  • F-2B: Unmarried Children (21+) of Green Card Holders
    • Mexico advanced 3 months, now October 1, 2006.
    • All others: No movement.
  • F-3: Married Children of U.S. Citizens
    • 3 months movement for most countries.
    • Example:
      • India: July 22, 2012
  • F-4: Siblings of U.S. Citizens
    • Big movement:
      • Philippines moved 5 months and 3 weeks, now January 1, 2008.
      • India moved 2 weeks, others stayed the same.

Current Bulletin: January, 2025

Note: Dates in the bulletin are in DAY-MONTH-YEAR (dd-mm-yy) format.

Visa Bulletin Glossary

What is the Visa Bulletin?

Wondering how to read the Visa Bulleting?

The Visa Bulletin is a tool to help you understand green card wait times. It includes:

  • Priority Dates: Your position in line based on when your green card petition was filed.
  • Dates for Filing: When you can file the next step.
  • Final Action Dates: When your application will be fully processed.

Check your priority date (the date your petition was filed) against these cut-off dates.

Additional Notes

  • C” means current.
  • “U” means not available.

How to use the Visa Bulletin

Here’s how:

  1. Determine Your Category: Family-based or employment-based.
  2. Check Your Priority Date: Look at your I-140 (employment-based) or I-130 (family-based) to find your priority date.
  3. Compare with the Bulletin:
    • If your date is before Final Action Dates, you will be approved soon.
    • If your date is before the Filing Date, you can file.
  4. Monitor Monthly: Visa Bulletin dates are updated monthly. Don’t miss your window.
  5. Consult an Immigration Attorney: For complex cases or retrogressed dates.

Background on Employment-Based Categories

The employment-based system has five preference categories, each with its own allocation:

EB-1: Priority Workers

  • 28.6% of the worldwide employment-based preference level, plus any unused numbers from EB-4 and EB-5.

EB-2: Advanced Degree Professionals or Individuals with Exceptional Ability

  • 28.6% of the worldwide cap, plus any unused numbers from EB-1.

EB-3: Skilled Workers, Professionals, and Other Workers

  • 28.6% of the global level, 10,000 for Other Workers.

EB-4: Certain Special Immigrants

  • 7.1% of the global total. The Employment-Based Fourth Preference (EB4) category, often referred to as the fourth preference, is allocated a specific percentage of the total visas available each year. This category includes special immigrants such as religious workers, certain broadcasters, and employees of international organizations.

EB-5: Employment Creation (Investor Visas)

  • 7.1%, 32% set aside for:
  • 20% for rural areas.
  • 10% for high-unemployment areas.
  • 2% for infrastructure projects.

EB-5 Reserved Categories: Faster Green Cards

Reserved visas under RIA allocate:

  • 20% for rural areas.
  • 10% for high-unemployment areas.
  • 2% for infrastructure projects.

These are current for all countries, including high-demand countries like India and China. You can get:

  • Shorter wait times.
  • Priority processing for I-526E petition

Background on Family-Based Categories

Family-sponsored preferences allocate visas based on relationships with U.S. citizens or lawful permanent residents.

  1. F1: Unmarried sons and daughters of U.S. citizens.
    • 23,400 plus any F4 numbers.
  2. F2: Spouses, children, and unmarried sons/daughters of permanent residents.
    • F2A: 77% of F2, no per-country limits.
    • F2B: 23% for unmarried adult sons and daughters.
  3. F3: Married sons and daughters of U.S. citizens.
    • 23,400 plus any F1 and F2 numbers.
  4. F4: Brothers and sisters of U.S. citizens.
    • 65,000 plus any F1, F2 and F3 numbers.

Recommendations for Applicants

  • Stay Informed:
    • Check the visa bulletin every month to see what’s changed and plan accordingly.
    • Consider subscribing to immigration newsletters for up-to-date information.
  • Consult an Immigration Attorney:
    • Find out how the changes affect your case.
    • Explore options like category changes or priority date transfers if eligible.
    • Make sure all documents are ready to go if your priority date becomes current.

FAQs on January 2025 Visa Bulletin

GENERAL

FAMILY BASED

EMPLOYMENT BASED

UNDERSTANDING DATES AND PROCESSES

Miscellaneous

FUTURE TRENDS AND FORECASTS

PRACTICAL TIPS

WE CAN HELP

By being informed, you can make better decisions about your green card application.

Call the Herman Legal Group to discuss your immigration case today!

Expert Legal Help At Herman Legal Group, LLC

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H4 EAD, Trump: Which Will Prevail?

The H4 EAD has been a lifeline for thousands of H1B spouses, allowing them to work in the US while their family goes through the long green card process.

The H4 visa allows spouses and children of H1B visa holders to live in the US. Over time, the Employment Authorization Document (EAD) for H4 visa holders has allowed some H4 spouses to work, contribute to the economy and support their families. This policy is particularly significant for highly skilled workers in the EB-2 and EB-3 categories, as it helps them navigate the lengthy green card process.

The H4 EAD program for spouses and children of H1B visa holders has tremendous untapped potential to address labor shortages, drive economic growth and attract global talent. Current US policies limit work eligibility for H4 spouses much more than countries like Canada. Expanding work authorization for all H4 visa holders would bring huge benefits to US economy, workforce and innovation ecosystem.

Trump’s Return

On January 20, 2025, President Donald Trump will be back as US President. With Republican controlled Congress, Trump will likely repeat what he did in his first term and try to make significant changes and possibly eliminate the H4 EAD program launched by Obama in 2015.

Trump’s second term will be all about American workers and H4 work permits are on the chopping block again.

Key Questions

  • Not If, But When: Advocates believe the debate will be on the timing and not whether or not changes, such as elimination, will happen. There are ongoing legal challenges to the H-4 EAD rule, with various lawsuits claiming it impacts job availability for American workers.
  • Sectoral Impact: Elimination of H4 work permits will impact industries where H4 spouses currently work, IT, healthcare and finance.

H1B holders and their H4 spouses are getting anxious again. The rollback of Employment Authorization Documents (EADs) for H4 visa holders will disrupt lives of H4 spouses of H1B workers who rely on this provision for employment, independence and social integration.

Trump’s First Term

We will discuss and analyze Trump’s attempts to restrict and eliminate the H4 EAD in the article below, but here are the major points for now:

  • Attempted Elimination:
    • Under the first Trump administration, DHS attempted to eliminate the H4 EAD through a proposed regulation. A second Trump administration could bring significant changes to U.S. immigration policies, including stricter immigration compliance and possible reinstatement of previous employment-related restrictions.
  • Biometric Requirements:
  • Processing Delays:
    • Lawsuits showed that simple processes that took 12 minutes under normal circumstances took over a year.
  • Intentional Barriers:
    • USCIS policies seemed to be designed to prevent H4 spouses from getting work authorization and many lost their jobs.

Here’s a detailed analysis of the program history, risks under Trump 2.0 and what H4 EAD holders and applicants can do to prepare.

What’s at Stake for Families?

For hundreds of thousands of H1B/H4 families who are waiting years (and even decades) for employer based green cards, the rollback of work permits is not just a policy change but a question of livelihood, independence and future stability.

Key Concerns

  1. Financial Dependence: Many families rely on dual incomes to manage high cost of living in the US.
  2. Career Loss: Skilled professionals will stagnate in their careers, lose years of experience and opportunities.
  3. Community Integration: Without work permits, spouses will lose access to basic tools like SSNs and driver’s licenses and will be further isolated.

What’s at Stake for US Economy?

Rolling back H4 EAD eligibility will shrink the US economy by at least $7.5 billion to $13 billion annually and more if families leave for more welcoming countries.

Keeping dual income families will lead to higher consumption, savings and investments and long term economic stability.

Economic and Social Impact of H4 EAD

Boosting US Workforce

  1. Addressing Labor Shortages:
    • Many H4 spouses are qualified for high demand STEM roles where unemployment rates are very low and job vacancies are high.
    • US can tap into this skilled workforce to address critical shortages in technology, healthcare and engineering.
    • Median salary for H4 EAD holders: $111,632/year (more than double the median US salary of $53,490).
    • Businesses should prioritize workforce planning to prepare for potential changes in U.S. immigration policy, ensuring compliance and mitigating risks associated with disruptions.

Encouraging Entrepreneurship:

  • H4 EAD holders can start businesses and create jobs for US workers.
  • 7% of H4 EAD holders are entrepreneurs and employ over 30,000 US workers, showing their potential to contribute to economic growth.

Productivity:

  • H4 spouses can work and get better job matches for their skills and increase overall economic efficiency and innovation.

Talent Retention

  • Green Card Backlogs:
    • Long wait times (10-15 years for Indian applicants) discourage H1B workers from staying in the US. H4 EAD provides financial and psychological stability and encourages families to stay.
  • Attracting Talent: Global Competitiveness:
    • Countries like Canada and Australia already allow spousal work authorization. US is less attractive without programs like H4 EAD.

Canada Is Moving In, Luring skilled migrants away from US.

  • Spouses of skilled temporary foreign workers in Canada can work for any employer in any occupation upon arrival without needing a separate EAD application.
  • Processing times are as short as 2 weeks for spousal work permits.
  • Canada has no country based green card caps so faster transition to permanent residency.
  • Global Skills Strategy ensures quick visa approvals for high-skill immigrants. Between 2016 and 2021, number of Indians becoming permanent residents in Canada increased by 115% while number of Indian students in STEM graduate programs in US decreased by 15% during the same period.

Overview of H4 EAD

For those who are not familiar with H4 EAD, first let’s understand H-1B and H-4 visas.

H1B Visa: A Gateway for Skilled Workers

H1B is a non-immigrant worker visa for professionals.

  • Purpose: Allows foreign nationals with specialized knowledge and bachelor’s degree or higher to work in US in fields like technology, engineering, healthcare and finance.
  • Salary: The salary must meet or exceed the prevailing wage as determined by Department of Labor.
  • Duration: 3 years initially and extendable up to 6 years.
  • Green Card Pathway: Many H1B workers transition to lawful permanent residency (LPR) through employer sponsorship but due to annual caps and per-country quotas, wait times can be decades for applicants from high demand countries like India and China.

H4 Visa: For Family Dependents

H4 visa is a temporary nonimmigrant visa for spouses and minor children of H visa holders, mainly H1B workers.

  • Eligibility: Issued to spouses and unmarried children (under 21) of H1B visa holders.
  • Validity: Matches the duration of H1B holder’s visa including extensions. H4 visa is tied to H1B visa holder’s status. If H1B worker loses their status (e.g., through job loss or visa expiration), their H4 dependents also have to leave US.
  • Purpose: To allow families to stay together while H1B holder works or transitions to permanent residency.

What Is H4 Work Permit?

H4 EAD was introduced in May 2015 under Obama administration. H4 EAD allows spouses of H1B visa holders to work in US, to help families maintain financial stability. This work authorization was a lifeline for many families facing green card backlogs, so spouses can:

  • Earn extra income.
  • Get Social Security Numbers (SSNs).
  • Open bank accounts.
  • Get state issued driver’s license.
  • Build careers and contribute to US industries.

The H4 EAD plays a significant role in legal immigration policies by providing employment opportunities to spouses of H1B visa holders.

Without EAD, H4 visa holders are stuck in dependent status with no way to work legally in US, restricting their financial stability and social integration.

Created Through Executive Action

Like DACA, H4 EAD program is vulnerable to elimination through new executive orders or legislation.

Eligibility for Employment Authorization (EAD)

Pursuant to the 2015 DHS ruleH4 visa holders can apply for EAD if:

  • H1B spouse has I-140 approved OR
  • H1B is extending beyond 6 years due to green card backlogs under AC21.
  • Submit I-765. H4 visa holder submits employment authorization application
  • Flexibility: Unlike H1B, H4 EAD allows unrestricted employment—H4 visa holders can work for any employer, be self employed, work as freelancer, start a business and hire employees
  • Validity: EAD is tied to H4 visa and requires renewal upon expiration.

Why H4 Work Permit Matters

H4 EAD is not just about income; it’s about independence and inclusion. Losing this authorization means:

  • Financial Instability: Many families rely on dual incomes, especially with high cost of living in US.
  • Career Delay: Skilled professionals on H4 visas, many with advanced degrees, may lose years of career momentum.
  • Integration & Social Isolation: Not being able to get SSN or driver’s license creates barriers to everyday activities like banking and commuting. Working spouses integrate more into American society, achieve higher socio-economic mobility.
  • Family Dynamics: Employment reduces dependence on H1B holder and promotes gender equality within immigrant families.

This has been a lifeline for many, especially in Indian diaspora, for H4 spouses not only to join the US workforce, but also create a dual income stream into the home, either through employment or entrepreneurship.

In short, EAD is not just about employment; it’s a lifeline for many families and a pathway for dependent H4 spouses to integrate into American society.

H4 EAD by the Numbers

H4 Visa Issuance Trends

  • H4 visa issuances have increased:
    • 1992: 24,756 visas.
    • 2019: 125,999 visas.
  • Most are issued to Indian nationals since they have high representation in H1B visas.

Characteristics of H4 Spouses

  • Highly Educated: 90% of H4 visa holders have bachelor’s degree and over 50% have graduate degree.54% have STEM degrees and are prime candidates for technology, engineering and science roles.
  • Mostly Female:90% of H4 visa holders are women. 67% are from India and 6% are from China.
  • Underutilized Workforce: Only 27% of H4 spouses with temporary visa are employed and many face barriers to get jobs due to restrictive policies. Among employed, 42% work in STEM fields, they can address talent shortages in these areas.

Characteristics of H4 EAD Holders

Educational Background of H-4 EAD Holders

  • 90% of H4 EAD holders have bachelor’s degree or higher, many in high demand industries like technology and healthcare.

H4 EAD Employment Statistics

  • 2/3 of H4 EAD holders work in computer and math occupations.
  • Major employers are Google, Microsoft, Amazon and Facebook.

H4 EAD Geographic Distribution

  • Top States: California (28,033 EAD holders), Texas (13,579), New Jersey (11,996) have the most approvals.
  • Tech Hubs: Cities like Silicon Valley, Seattle and Austin are top due to high concentration of H1B workers.

H4 ED Gender and Nationality

  • Gender: 93% of H4 EAD holders are women, same as the broader gender imbalance in family based immigration.
  • Nationality: 93% of EAD holders are Indian nationals, 5% are from China.

Number of Approved H4 EADs

  • 2015: 26,858
  • 2016: 41,526
  • 2017: 36,366

Potential Impacts of H4 EAD Rescission

Job Loss:

  • Over 90,000 H4 EAD holders will lose their jobs, 93% of them are women.

Economic Costs:

  • Businesses will face higher turnover and recruitment costs to replace skilled workers who might leave US.

Family Separation or Exodus From U.S.:

  • Financial pressure may force families to separate or leave the U.S. H1B workers may move to countries that offer better opportunities for their spouses.

H4 EAD History

“You have to know the past to understand the present.”

Carl Sagan

To know the risks and shape of future, let’s first look back to the history and evolution of H4 EAD program.

The EAD rule was implemented to address the problems faced by immigrant families stuck in green card backlogs, especially those from India.

How H4 Work Authorization Was Established?

  • May 12, 2014: DHS proposed the rule and opened it for comments.
  • February 25, 2015DHS finalized the rule after comments and minor revisions for clarity.
  • May 26, 2015Rule became effective, eligible H4 spouses can start applying for EADs.

Public Comments

  • Supporters: Economic and personal benefits, no disruption to businesses.
  • Opponents: Labor market competition and misuse.
  • Resolution: DHS kept the rule, minimal impact on overall workforce (<1%).

Purpose of the Regulation

This regulation addresses several problems faced by H1B families:

  1. Long Green Card Wait Times: As of 2023, the employment based green card backlog for Indian workers (EB-2 and EB-3 categories) is over 1 million. Without reforms, some may face 54-134 years of wait for permanent residency.
  2. Economic Impact: Highly educated spouses, many of whom work in critical sectors like healthcare and tech, contribute to US economy.
  3. Reducing Economic Hardship: Many families rely on one income during long green card wait times, financial strain. H1B families face financial strain, especially in high cost areas like California and New York.
  4. Retaining Skilled Workers: Prevents H1B workers from giving up on green card due to family financial pressure. Businesses lose H1B talent when families struggle financially.
  5. Global Standards: Brings US immigration policies in line with competing countries like Canada and Australia which allow work for immigrant spouses. Other countries with similar immigration systems grant work authorization to spouses, giving them an edge in attracting top talent.
  6. Entrepreneurship: Promotes innovation and economic growth by allowing skilled H4 spouses to contribute to the workforce.

Legal Authority for the Rule

DHS authority comes from:

  • Homeland Security Act of 2002: Gives the Secretary of Homeland Security authority over immigration laws.
  • Immigration and Nationality Act (INA): Employment eligibility for noncitizens, Section 274A(h)(3)(B).

Criticism and Challenges

While the rule has broad support, it faces opposition:

Critics argue that the H4 EAD rule takes jobs away from American workers and undermines the integrity of the immigration system. They also claim that it encourages more people to come to the U.S. illegally, hoping to benefit from similar programs in the future. Additionally, there are concerns about potential future restrictions on temporary protected status under a second Trump administration, which could impact many individuals and their employers who depend on TPS for extended work authorization.

Labor Market:

  • Critics argue H4 spouses working increases competition for US workers.

Fraud:

  • Misuse (falsified credentials or marriage fraud) was raised but largely unsubstantiated.

In 2015, the Projected Impact of the Rule

First Year Impact

  • 179,600 H4 spouses will be eligible for EADs.
  • 55,000 new applicants projected annually after first year.

Economic Benefits

For Families:

  • Two incomes reduce financial strain and better quality of life.

For Employers:

Retain skilled H1B workers and reduce turnover costs.

For the Economy:

  • Promotes entrepreneurship and innovation, especially in STEM.

Costs

  • Application fees and time spent filing are by applicants.
  • Federal processing costs are offset by fees collected.

H4 EAD Eligibility Requirements

To apply for H4 EAD you must meet both of the following:

H1B Relationship:

You must be in H4 status, which is granted to dependents (spouses or children) of H1B visa holders.

H1B Spouse’s Eligibility:

Your H1B spouse must be one of the following:

  • Approved Form I-140: Your H1B spouse is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; OR
  • H1B Extension under AC21: Your H1B spouse has been granted H1B extension beyond 6 years under AC21 because they:
    • Filed labor certification or Form I-140 at least 365 days before reaching H1B limit.
    • Are waiting for green card due to employment based green card backlogs (priority date is not current).

How to apply for H4 EAD

Step 1: Fill out Form I-765

  • Use the latest version of Form I-765 from the USCIS website.
  • Use eligibility code (c)(26) for H4 dependent spouses applying for EAD.

Step 2: Gather Required Documents

Include the following with your application:

Proof of H4 Status:

  • Current I-797 approval notice for I-539.
  • OR copy of I-94 showing current H4 admission or extension.

Identity:

  • Government issued photo ID such as:
  • Passport (biometric page).
  • Previous EAD (if any).
  • National ID card with photo.
  • Visa issued by a US consulate.

Proof of H1B Spouse:

  • Copy of marriage certificate.

Proof of H1B Spouse’s Status:

  • Copies of H1B holder’s:
  • Current and prior I-94.
  • Current and prior I-797 (for I-129).
  • Passport pages showing validity.

Eligibility: Depending on your spouse’s status:

  • For Approved Form I-140: Copy of I-140 approval notice (I-797).
  • For H1B Extension under AC21:Evidence that I-140 or labor certification was filed 365+ days before H1B limit.DOL correspondence or I-140 receipt notice showing AC21 eligibility.

Passport Style Photos:

  • 2 identical color photos, 2×2 inches, USCIS requirements.

Translations (if applicable):

  • If submitting non-English documents, include certified English translations. Translator must certify the accuracy and their ability to translate.

Step 3: Submit I-765

Choose the correct filing address based on your application type:

  • Standalone I-765: Submit to the Lockbox address on the Direct Filing Addresses for I-765 webpage. Alternatively, file online.
  • Filing with other forms:If filing with I-539 (Change/Extend H4 status) or I-129 (H1B petition for spouse), file at the service center processing I-129.

How USCIS Processes H4 EAD

Processing Time:

  • USCIS processes I-765 applications in 3-6 months, but varies.
  • Check your application status online using your receipt number.

Decision:

  • USCIS will only adjudicate H4 EAD application after confirming H4 status and H1B eligibility of your spouse.

Approval and Validity:

  • EAD validity is same as H4 status, as shown on I-94.
  • If H4 or EAD expires, you need to file for extensions to continue working.

Renewal and Automatic Extensions

Renewing H4 EAD:

  • File another I-765 no more than 180 days before current EAD expires.
  • Include updated evidence of eligibility.

Automatic EAD Extensions:

  • In some cases, you may be eligible for automatic extension of work authorization while renewal application is pending.

Bundling H4 EADS with H1B Extension Application

Edakunni v. Mayorkas.  Over 40 companies including Amazon, Google and Apple are part of a lawsuit to bundle H4 EAD applications with H1B extensions to speed up processing.

The settlement now permits bundling but a new administration can bring back similar hurdles.

Bundled Processing

  • How It Works: USCIS allows H1B, H4 and H4 EAD to be filed together, known as “bundled processing”.
  • When bundled, all applications are adjudicated at the same time. If H1B is filed under premium processing, H4 and H4 EAD will be processed faster even though standalone H4 EAD is not eligible for premium processing.

Benefits: Faster approval for H4 and H4 EAD when bundled with premium processing H1B applications. Reduced waiting time for employment authorization.

Auto-Extensions

Current Policy:

  • H4 EAD holders who file for timely renewal are eligible for automatic extensions of work authorization if their H4 status is already extended.
  • Impact:
    • This policy reduces employment gaps and provides more stability for individuals and employers.

Common Mistakes and How to Avoid Them

Incomplete Applications:

  • Make sure all sections of I-765 are filled out correctly.
  • Review your supporting evidence to avoid RFEs.

Incorrect Filing Fees:

  • Pay the exact fee amount listed for I-765. USCIS will reject incorrect payments.

Misfiling Forms:

  • Make sure I-765 is filed at the correct Lockbox or service center. Filing at the wrong address will delay or invalidate your application.

Fraud or Scams:

  • Be careful of unauthorized practitioners who offer false promises. Use only official USCIS resources or a licensed immigration attorney.

Problems with Current Policy

Barriers to Entry and Delayed Access:

  • Spouses typically wait 6+ years before they can get EAD as eligibility depends on the H1B holder’s green card application progress.
  • EAD processing time is 6-8 months which means more delays and employment gaps.

Complex Alternatives:

  • Some H4 spouses apply for their own H1B visa which requires:
  • Employer sponsorship which is expensive and uncertain.
  • H1B lottery which has less than 20% success rate due to caps on visa issuance.
  • These barriers keep many H4 visa holders out of the workforce.

The Case for Automatic H4 EAD

Instead of eliminating or restricting H4 EAD, the White House and Congress should work together to unleash the potential of H4 visa holders by:

Immediate Work Authorization for H4 Spouses:

  • Remove the requirement for H1B spouse to be in green card queue before H4 spouse can apply for EAD.
  • Grant work authorization to H4 visa holders upon arrival in US.
  • A larger talent pool makes US more competitive in the global economy.
  • Granting work eligibility could free up H1B slots for more skilled workers to come to US.

Equity/Parity with Other Visa Categories:

Spouses of L1 (intra-company transferee), E1 (treaty trader) and E3 (Australian specialty worker) visa holders are automatically eligible to work. Granting similar rights to H4 spouses aligns US policy with these precedents

Retain Talent:

Dual income families are less likely to leave US for countries like Canada and will keep top talent in the American economy

Simplify Processing:

  • Reduce EAD processing time from 6-8 months to less than 30 days.
  • Concurrent processing of H4 visa and EAD with H1B application.

Increase Public Awareness:

  • Educate employers and policymakers about the economic benefits of using H4 talent to fill talent gaps.

Trump’s Administration’s Previous Position on H4 Work Permits

During his previous presidency, Donald Trump issued the “Buy American, Hire American” executive order to protect US workers.

Trump’s Efforts at H4 EAD Rescission (2017-2021)

During his first presidency, Trump’s “Buy American, Hire American” executive order aimed to prioritize US workers for jobs.

In 2018, Department of Homeland Security (DHS) proposed a regulation titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”.

Under this policy:

  • The administration proposed to rescind H4 EAD rule citing job competition. In 2021, Biden withdrew Trump’s propsal.

Although the proposal was not finalized, it created uncertainty for thousands of families.

Timeline

Original Date Announced

December 14, 2017

DHS published a notice in the Unified Agenda of Regulatory Actions that it intends to rescind a rule making spouses of H1B visa holders who hold H4 visas eligible to work. [ID #492]

RIN: 1615-AC15: Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

April 4, 2018 USCIS reports efforts to narrow eligibility for nonimmigrant worker programs

Subsequent Trump-Era and Court Action(s)

November 1, 2018

Removing H­4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

DHS once again published in the Unified Agenda its intention to rescind the rule providing for work authorization for certain H-4 nonimmigrants.

View Document

August 26, 2020

Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization

The Unified Agenda published on August 26, 2020, noted that DHS will publish a notice of proposed rulemaking (NPRM) in September 2020 modifying the final rule published by DHS in 2015 that extended eligibility for employment authorization to certain H– 4 dependent spouses of H–1B. The new proposed rule will rescind the earlier 2015 rule, making this class of aliens ineligible for employment authorization.

View Document

Problems with H4 EAD Rule Rescission

The proposal was widely panned for its economic and social impact, especially for skilled professionals in critical sectors like healthcare, IT and education

The Trump era proposal to rescind H4 EAD faced both procedural and moral challenges:

  1. Economic Impact: Many skilled professionals, mostly women, would have been forced out of the US workforce.
  2. Family Strain: Families dependent on two incomes would have faced financial difficulties.
  3. Industry Impact: Tech, healthcare and education would have lost talent.

Expert Analysis

  • 2019 Forbes article noted the high economic and social cost of removing H4 visa holders from the workforce.

Advocates pointed out the H4 EAD promotes gender equality and financial independence for immigrant families

Why Was the Rescission Rule Withdrawn by Biden?

Biden reversed Trump’s move and kept H4 EAD. This decision:

  • Gives stability to families waiting in green card backlog.
  • Allows skilled spouses to contribute to sectors with labor shortages.
  • Eases economic disruption in immigrant communities.

Immigration experts said removing H4 work permits would disproportionately harm families already waiting for years in green card processing.

Biden issued a regulatory freeze memo on January 20, 2021 and all rulemaking was put on hold. As a result:

  • January 25, 2021: The H4 EAD Rescission Regulation was withdrawn from OMB review.
  • This fits with President Biden’s overall immigration agenda which is inclusive and immigrant workforce integration.

The Legal Challenge: Save Jobs USA vs. DHS

It was just Trump. Since its introduction, the EAD rule has been opposed by many, mainly those who claim it hurts American jobs.

From the beginning, the H4 EAD rule has been challenged in court. Save Jobs USA, an organization of U.S. born tech workers, has argued:

  • DHS has no authority to issue work permits to H4 visa holders.
  • Allowing H4 spouses to work creates unfair competition for American workers.

Timeline of the Lawsuit

  1. 2015: Save Jobs USA filed the initial lawsuit.
  2. 2017-2020: Trump administration considered rescinding the rule but did not finalize any changes.
  3. 2021: Biden administration sided with H4 EAD and Save Jobs USA filed motions for summary judgment.
  4. March 2023: US District Court ruled in favor of DHS.
  5. August 2024: US Court of Appealsaffirmed the district court’s decision.  In a big win for immigrant families and the industries that rely on them, the US Court of Appeals for the DC Circuit upheld the 2015 H4 EAD. This means the government has the authority to issue work permits to H4 spouses.

Federal Court Ruling: Highlights

US Court of Appeals for the DC Circuit, Judge Justin R. Walker wrote the opinion. Key points:

  • DHS Authority: The court cited previous cases that upheld DHS’s authority to create work authorization programs, including OPT for F-1 students.
  • Binding Precedent: The court found Save Jobs USA did not present substantial evidence to distinguish H4 EAD from similar precedents.

Support from Major Organizations

Companies and business groups filed an amicus brief in support of H4 EAD during the lawsuit. They argued:

  • Repealing H4 work authorization would slow down U.S. economic growth.
  • It would push highly skilled immigrant talent to other countries, hurt innovation and global competitiveness.

Court Decisions: The courts have upheld the EAD rule, the Department of Homeland Security has the authority to issue work permits to H4 visa holders.

Despite these decisions, advocacy groups are still challenging the policy, adding more uncertainty for affected families More importantly, the rule can still be rescinded or restricted by Trump’s incoming administration.

Biden’s H4 EAD Codification

President Biden’s U.S. Citizenship Act of 2021, announced on January 20, 2021, attempted to create a more permanent H4 EAD. Key points:

  • Codify H4 EAD into law to prevent policy changes.
  • Fix systemic issues:
    • Clear green card backlogs.
    • Recapture unused visas.
    • Reduce wait times for employment based visas.
    • Eliminate per-country visa caps.

The bill did not pass.

What Is Likely to Happen to the H-4 EAD Program by Trump in 2025?

The Trump administration previously tried to rescind H4 EAD as part of the “Buy American, Hire American” agenda. Though it didn’t happen during the first term, a second term could bring it back. Key risks:

1. Elimination Through Executive Action

  • Process: Rescinding H4 EAD through executive rulemaking would likely involve a notice-and-comment period, so implementation would be delayed by several months.
  • Impact: This would give affected families some time to find alternatives, but uncertainty would remain until the process is complete.
  • This would have huge implications:
    • Economic Impact: Families would lose income, impact spending and investment.
    • Career Disruption: Many H4 visa holders in key industries would have to leave their jobs.
    • Community Integration: Without work authorization, spouses can’t fully participate in American life.

2. Legislative

  • Republican-Controlled Congress: With Republican majorities in both chambers, changes can be made through legislation, faster to pass and harder to undo.
  • Broader Impact: Legislative changes can target not only H4 EAD but also other immigration programs like OPT or STEM visas.

3. Bundled Adjudication

  • Current Practice: USCIS allows H4 and H4 EAD to be bundled with the H-1B petition, so if premium processing is used for the H-1B, processing is faster.
  • Impact: Trump could eliminate this policy, forcing standalone processing of H4 EAD applications, which would mean longer wait times.

4. Biometrics Requirement

  • Background: Previous administrations required biometrics for H4 and H4 EAD applicants and it caused huge processing delays.
  • Impact: Requiring biometrics again could mean long wait times and employment gaps for H4 EAD holders during renewals.

5. Automatic Extensions

  • Current Practice: H4 EAD holders with timely filed applications get automatic extensions if their H4 status is valid.
  • Impact: Stopping automatic extensions would mean applicants would have to stop working while waiting for approval, affecting families and employers.

What Should H-4 Holders Due to Prepare for Trump 2.0?

Proactive planning is key to minimize the risks. Here are the steps H4 EAD holders and applicants can take to protect their status and work authorization:

1. Apply for H4 EAD Now

  • Why Now? With changes possible, apply for work authorization before new policies kick in.
  • Who Should Apply? H4 spouses who haven’t applied for H4 EAD yet. H4 EAD holders whose EAD is about to expire.

2. Renew Early

  • When to Renew: File extension within 180 days of EAD expiration.
  • Benefits of Early Renewal: Avoid employment gaps due to processing delays or new rules.

3. File Under Premium Processing

  • Why: Bundling H4 and H4 EAD with premium processing H1B petition gets faster adjudication.
  • What to Do:If your spouse’s H1B is due for renewal, file all applications together under premium processing.

4. Expedite I-140

  • Premium Processing: If the principal H1B has a pending I-140, consider upgrading to premium processing for faster approval. Talk to your spouse’s employer to request premium processing for I-140.
  • Why: I-140 approval is often required for H4 spouse to qualify for EAD.

5. Talk to Your Employer About Premium Processing

  • PERM and I-140 Filing: If your employer hasn’t filed PERM or I-140 yet, discuss filing under premium processing to make H4 EAD eligible.

6. Keep Documents

  • Stay Ready:
    • Keep all required documents (e.g. I-94, approval notices) up to date to avoid delays in application processing.
  • Be Prepared:
    • Make sure all applications are fully documented to avoid RFEs.

7. Explore Other Work Authorization Options

  • If H4 EAD is eliminated, explore other visa categories or work authorization pathways like O-1, H1B, E-2, TN, EB-5. Talk with an immigration attorney to explore other options,

8. Talk to Immigration Attorneys

  • Find immigration law experts that you trust to keep you advised on the latest developments and innovative workarounds. Talk to your own immigration attorney or your employer’s legal team to plan for different scenarios.

9. Build Financial Cushion

  • Plan now to minimize financial impact of EAD revocation.

10. Employment Gaps

  • If you’re using H4 EAD for work, plan for employment gaps due to policy changes or processing delays.

11. Communicate with Employer

  • If you’re working on H4 EAD, keep your employer informed about your immigration status and potential changes to avoid confusion.

12. Stay Informed

  • Follow Policy Updates: Monitor USCIS, advocacy group and legal expert news to stay ahead of changes.

Join Advocacy Groups

  • Organizations like Immigration Voice support H4 EAD holders. Join them for support and resources. Contribute your voice and perspective.

Challenges for H4 EAD Holders

Even if H4 EAD program isn’t eliminated completely, other changes could affect work authorization:

  • Longer Processing Times: Standalone applications without premium processing could take months.
  • Employment Gaps: Without auto-extensions, renewal applicants would have to stop working while applications are pending.
  • More Stringent: Applicants may face more documentation requirements and higher denial rates under new rules.

A Tough Road Ahead

H4 work permits are uncertain with Trump’s return and policy rollbacks. For many H1/H4 families, EAD is not just about jobs, it’s about independence, dignity and ability to contribute to American dream.

Background on 2015 DHS Rule that created H-4 EAD

For those interested in the rationale of the 2015 H-4 EAD Rule should read the Rule published in the Federal Register. The summary of the Rule follows and will provide additional evidence and support for those looking to support the program in 2025 and beyond.

H-4 EAD Overview

The Department of Homeland Security (DHS) created a rule to allow H-4 visa holders—spouses of H-1B visa holders—to work in the US to alleviate hardships and support US businesses by keeping highly skilled foreign workers. Here is a summary of the current framework, eligibility, public comments and the final rule.

H-4 Visa: Supporting H-1B Families

  • Eligibility: Issued to spouses and unmarried children (under 21) of H-1B visa holders.
  • Duration: Same as the primary H-1B visa holder’s stay.
  • Work Authorization: Previously H-4 visa holders could not work in the US, causing financial and personal hardships for many families.

Background: Green Card Backlog

H-1B Families Challenges

Long Wait Times:

  • Employment based (EB) immigrant visas especially for individuals from oversubscribed countries like India and China have long backlogs—often decades.
  • H-1B workers cannot file for adjustment of status unless their priority date is current.

Economic and Emotional Strain:

  • Single income households struggle financially while waiting for green card approval.
  • Dependents face isolation and lack of integration opportunities due to work restrictions.

Impact on US Employers

  • Workforce Disruptions:
    • Skilled workers may leave the US due to green card delays and businesses have to find replacements.

Legislative Relief:

  • To address this issue Congress passed provisions under AC21 to allow H-1B extensions beyond 6 years and to reduce disruption to employers.

DHS’s Rule for H-4 Work Authorization

Proposed Rule (2014)

May 12, 2014

DHS proposed to amend the regulations to allow certain H-4 dependent spouses to apply for employment authorization if the H-1B visa holder:

  1. Is the principal beneficiary of an approved Form I-140 (Immigrant Petition for Alien Worker), or
  2. Has extended H-1B status under AC21 due to pending or approved employment based immigration petitions.

Key Changes in the Rule

  • Eligibility: Added H-4 spouses to the list of individuals who can file Form I-765 (Application for Employment Authorization).
  • Documentation Requirements: Listed the supporting evidence H-4 spouses need to submit to establish eligibility.

Public Comments on the Proposed Rule

During the 60 day comment period, DHS received almost 13,000 comments. Here are the comments:

Supportive Comments (85%)

Economic Benefits:

  • Dual income households lead to more disposable income, tax revenue and community contributions.
  • H-4 spouses joining the workforce will strengthen US innovation and economic growth.

Social Impact:

  • Reduces isolation, financial dependence and empowers women, reduces domestic stressors and mental health challenges.
  • Promotes family stability and integration into US communities.

Competitiveness:

  • US immigration policies should be aligned with other countries that offer work rights to dependents.
  • Helps retain highly skilled H-1B workers, reduces workforce disruption to employers.

Opposing Comments (10%)

  • Labor Market Concerns:Some feared competition to US workers and potential downward pressure on wages.
  • Others questioned DHS’s authority to grant employment authorization to H-4 dependents.

Mixed Comments (3.5%)

Eligibility Scope:

  • Some commented that the rule was too narrow and excluded dependents of other visa categories.
  • Others felt it was too broad and would invite misuse or fraud.

Final Rule

After comments, DHS finalized the rule with minor tweaks to clarify and address filing issues.

Eligibility Clarifications

H-4 spouses can file for employment authorization if:

  • The H-1B visa holder is the principal beneficiary of an approved Form I-140, or
  • The H-1B visa holder has extended status under Section 104(c) of AC21.

Filing Process Changes

  • Allowed to file Form I-765 with Form I-539 (Application to Extend/Change Nonimmigrant Status) for expedited processing.

Projected Numbers

  • Year 1: 179,600 H-4 spouses eligible to apply.
  • Annual growth: 55,000 new applicants per year.

H-4 Work Authorization Benefits

For Families

  • Dual income, less financial stress.
  • Integration into US society, long term stability.

For Employers

  • Retain H-1B workers during green card processing, reduced turnover costs.
  • Helps businesses in key STEM fields.

For the Economy

  • Adds skilled workers to the workforce, innovation and productivity.
  • Consumer spending and homeownership, local economies.

Background and Public Comments

1. H-4 Dependents of H-1B1, H-2, H-3 Nonimmigrants

Public Comments

  • Over 200 commenters suggested to extend employment authorization to H-4 dependents of non-H-1B visa holders, including:
    • H-1B1: Specialty workers from Chile and Singapore.
    • H-2A: Temporary agricultural workers.H-2B: Temporary non-agricultural workers.
    • H-3: Trainees.
  • Reason: Expanding eligibility would make US more competitive by bringing in more skilled workers and economic contributions from a larger pool of dependents.

DHS Response

  • Current Limitations:
    • H-1B visa holders have “dual intent” and can pursue LPR without losing nonimmigrant status. This is not available to H-1B1, H-2 or H-3 visa holders.
    • Congress, through AC21, specifically allowed H-1B visa holders to extend their stay during green card processing, which is not applicable to other H categories.
  • Future Options:
    • DHS recognized the idea has merit but wants to address these issues step by step. Expanding eligibility might be considered in future rulemaking.

2. All H-4 Dependents of H-1B Visa Holders

Public Comments

  • Over 150 commenters asked DHS to grant employment authorization to ALL H-4 dependents of H-1B visa holders, not just those whose spouses are on a green card path.
  • Reason:
  • The rule should be consistent with other visa categories like L-1, E-1, E-2 and E-3 where all dependent spouses are eligible for employment authorization.

DHS Response

Legal Barriers:

  • Congress explicitly allowed employment authorization for dependents of L-1, E-1, E-2 and E-3 visa holders but not H-1B dependents. DHS’s regulatory authority does not permit to extend the same to all H-4 dependents.Policy Focus:
  • DHS focused on dependent spouses of H-1B visa holders who are actively pursuing LPR status to address green card delays while staying aligned with AC21.

3. Employment Authorization “Incident to Status”

Public Comments

  • Over 60 commenters asked for automatic employment authorization upon H-4 approval, eliminating the need to file Form I-765.
  • Reason:
    • Streamlining would reduce administrative burden and allow dependents to start working immediately.

DHS Response

Administrative Barriers:

  • Automatic employment authorization requires USCIS systems to verify eligibility independently. Current systems cannot verify spousal relationships or green card progress without manual adjudication.
  • Accuracy:
    • Filing Form I-765 ensures only eligible applicants get employment authorization, minimizing errors or unauthorized work.

4. Timing of Employment Authorization

Public Comments

  • Some commenters asked for employment authorization EARLIER in the green card process, such as:When a PERM labor certification is filed.When a Form I-140 petition is pending.

DHS Response

Approval-Based:

  • Employment authorization tied to approved Form I-140 petition ensures applicants are on the LPR path, reduces frivolous filings.
  • Allowing based on pending applications could result in ineligible individuals getting benefits if the applications are denied.
  • Policy Balance:
    • Limiting to approved cases is consistent with DHS’s goal of promoting compliance with U.S. immigration laws and efficient resource management.

5. H-4 Dependent Minors

Public Comments

  • Less than 40 commenters asked for employment authorization for H-4 dependent minors citing:
  • Lack of work experience.
  • Financial burden of post-secondary education.
  • Risk of aging out of H-4 status before green card eligibility.

DHS Response

  • Consistency Across Categories:
    • Employment authorization is limited to dependent spouses in other visa categories (e.g., L and E visas). Extending to minors would create inconsistencies.
  • Focus on Spouses:
    • DHS focused on addressing family economic burdens through spousal work authorization which indirectly supports dependent minors.
  • DACA Comparison:
    • The Deferred Action for Childhood Arrivals (DACA) program is for a different context and does not provide a basis to extend employment to H-4 minors.

Final Rule and Policy Priorities

Key Points

Employment authorization is for H-4 dependent spouses of H-1B visa holders who:

  1. Have an approved Form I-140.
  2. Have extended H-1B status under AC21.
  • Not for:
    • H-4 dependents of other H visa categories.
    • H-4 minors.
    • H-4 spouses at earlier stages of the green card process.

Policy Reasoning

  • Targeted Impact:
    • Focused on H-1B spouses addresses the biggest economic and personal burdens.
    • Incremental

DHS will consider further expansion but wants to take it slow and administratively feasible.

Requests for Expansion

1. Employment Authorization for H-1B Nonimmigrants

  • Public Comments:
    • Some commenters asked that H-1B visa holders get EADs to work for any employer, no employer specific restriction.
    • Some suggested a single EAD for households with dual H-1B spouses to avoid having one spouse to switch to H-4 status.
  • DHS Response:
    • H-1B employment authorization is incompatible with the visa’s employer specific nature.
    • Allowing EADs for H-1B workers would violate the terms of the H-1B classification which ties work authorization to a specific petitioning employer.
    • Dual H-1B households can use existing options but an H-1B holder must change to H-4 status to be eligible for an EAD as a dependent.

2. H-4 Dependents not selected in the H-1B lottery

  • Public Comments:
    • Less than 20 commenters asked for employment eligibility for H-4 dependents whose H-1B petitions were not selected in the lottery.
  • DHS Response:
    • This rule is to retain H-1B workers already pursuing lawful permanent residency (LPR) and not to address broader issues in the H-1B program.

3. Dependents of other nonimmigrant categories

  • Public Comments:
    • Some asked for dependents of O-1 (extraordinary ability) and TN (NAFTA professionals) visa holders to be eligible for employment.
  • DHS Response:
    • There are significant differences between these categories and H-1B classification:
      • O-1 and TN Visa Context: These categories have fewer visa backlogs and faster LPR processing for dependents.
      • Foreign Policy Considerations: TN visas are governed by international trade agreements like NAFTA which are outside the scope of this rule.

Opposition to the H-4 EAD Rule

1. Displacement of U.S. Workers

  • Comments:
    • Some thought the rule would increase competition for jobs, unemployment and lower wages.
  • DHS Analysis:
    • The rule is targeted, affects a small population (0.1156% of the U.S. civilian labor force).
    • High skilled immigration including H-4 dependent employment benefits the U.S. economy in the long run through innovation, consumption and job creation.
    • Existing anti-discrimination laws protect U.S. workers from being unfairly displaced by nonimmigrant labor.

2. Not Necessary

  • Comments:
    • Some argued existing immigration laws already allow H-4 dependents to change to employment authorized categories so the rule is redundant.
  • DHS Analysis:
    • The rule addresses gaps that prevent H-1B visa holders from remaining in the U.S. because their spouses can’t work.
    • DHS quoted many H-1B families and employers that the rule is necessary to retain workers and prevent families from leaving the U.S.

3. Impact on other immigration categories

  • Comments:
    • F-1 student graduates and other nonimmigrants felt the rule was unfair as they have more stringent paths to employment than H-4 dependents.
  • DHS Response:
    • The rule is targeted to address the specific challenges faced by H-4 dependents of H-1B workers including long green card backlogs.

4. Impact on Universities

  • Comments:
    • Universities worried about decline in enrollment if H-4 dependents choose to work over education.
  • DHS Response:
    • The rule gives more choices to H-4 dependents but does not take away their ability to pursue education.

The net effect on university enrollment is unknown, some say increased family income will lead to more educational spending.

Requests for more restrictive policies

1. Limit eligibility by skills or sectors

  • Public Comments:
    • Some asked to limit eligibility to H-4 dependents with advanced degrees, STEM qualifications or specific skillsets.
  • DHS Response:
    • The rule is to support U.S. businesses and retain H-1B workers regardless of the academic or professional background of their spouses.

2. Reciprocal employment policies

  • Public Comments:
    • Some suggested to grant employment authorization only to dependents from countries that offer similar rights to U.S. citizens abroad.
  • DHS Response:
    • The rule is to retain skilled workers for U.S. economic benefit and does not consider foreign reciprocity agreements which are foreign policy issues outside the scope of this rule.

3. Limit eligibility to AC21 extensions

  • Public Comments:
    • Some suggested to limit eligibility to spouses of H-1B workers who are benefiting from AC21 extensions.
  • DHS Response:
    • Including spouses of H-1B workers with approved Form I-140 petitions supports broader goals of retaining workers and minimizing disruption to U.S. employers.

Legal authority for the rule

  • Challenges:
    • Some argued DHS doesn’t have the authority to grant employment eligibility to H-4 dependents as Congress explicitly gave similar rights to L and E visa dependents.
  • DHS justification:
    • The Immigration and Nationality Act (INA) gives the Secretary of Homeland Security broad authority to determine the conditions of nonimmigrant admissions including employment authorization.
    • Precedents show the Executive Branch has the authority to grant work eligibility by regulation without congressional approval.

Economic and labor market impacts

  • Positive outcomes:
    • DHS expects minimal disruption to the labor market as the number of eligible participants is small.
  • Benefits:
    • Increased household income for H-1B families.
    • More economic contributions through consumer spending, real estate investments and tax revenue.
    • Family unification and better integration into U.S. communities were mentioned by commenters.
  • Displacement concerns:
    • DHS found no evidence that the rule would harm native born workers or highly skilled H-1B visa holders.

Responses to comments on volume estimates and methodology

Comments on DHS’s estimates

  • Opposing comments:
    • Many commenters argued that DHS underestimated the number of H-4 spouses eligible for employment authorization.
  • Alternate methodology:
    • A commenter cited the Yearbook of Immigration Statistics and suggested using historical averages of spouses adjusting to Lawful Permanent Resident (LPR) status to estimate the volume of H-4 spouses.

DHS Response:

  • Limitations of the suggested approach:
    • The historical average doesn’t account for current H-1B nonimmigrants waiting for visas or distinguish between H-4 and other statuses.
    • Not all H-1B spouses are in H-4 status so these calculations are less precise.
  • Refined methodology:
    • DHS used current data, considering the backlog of H-1B workers with approved I-140 petitions waiting for immigrant visas and the new flow of H-4 spouses becoming eligible.
    • This approach captures the population more accurately.

Final estimate:

  • Updated numbers:
    • DHS revised its estimates to up to 179,600 H-4 spouses in the first year.
    • This is a tiny fraction of the U.S. workforce (0.1156%) and doesn’t disrupt the labor market.

Costs and benefits

Comments on economic calculations:

  1. Cost concerns:
    • One commenter thought DHS overestimated costs by including opportunity costs (time H-4 spouses spend applying).
  2. Benefits undervalued:
    • Another commenter felt the rule didn’t account for economic and social benefits, including losses under current rule where H-4 spouses can’t work.

DHS’s position:

  • Costs:
    • Opportunity costs were calculated using minimum wage as a proxy for time value, which is a reasonable assumption.
    • Even if H-4 spouses aren’t working, they face opportunity costs in deciding how to use their time.
  • Benefits:
    • The rule increases household income, social integration and reduces economic burden on H-1B families.
    • It also helps U.S. employers by reducing H-1B workers abandoning the LPR process.

Improving the application process

1. Simplified filing process

  • Comments:
    • Commenters asked for streamlined or electronic filing options for Form I-765 (Employment Authorization Application).
  • DHS Response:
    • USCIS ELIS System:
      • DHS is moving to an electronic system that will have real-time updates and notifications for all benefit programs including H-4 employment authorization.
      • Paper filing until May 26, 2015 to avoid H-1B cap season overlap.

Employment Authorization Document (EAD) validity periods

Comments:

  1. Match EAD to H-4 admission period:
    • 9 commenters asked to align EAD with H-4 spouse’s authorized stay (up to 3 years).
  2. Shorter probationary EADs:
    • 1 commenter suggested 6 or 12 month EADs with proof of lawful work and tax payments.

DHS Response:

  • Aligned validity periods:
    • Will issue EADs matching H-4 dependent’s authorized stay to avoid gaps in authorization and reduce renewal frequency.
  • Probationary EADs:
    • Denied due to:
      • No evidence of fraud or tax evasion among H-4 dependents.
      • Administrative burdens from frequent renewals and potential gaps in employment authorization.

EAD renewals

Comments:

  • 5 commenters asked to renew up to 6 months in advance to align with H-1B extension filing timeline.

DHS Response:

  • Will allow concurrent filing of Form I-765 (EAD application with:
    • Form I-539 (H-4 extension/change of status).
    • Form I-129 (H-1B employer petition).
    • USCIS will process Form I-765 after related petitions are adjudicated.

Documentation requirements

Comments:

  • Commenters asked for clearer guidance on acceptable evidence for Form I-765 and how to get the required documents.

DHS Updates:

  1. More guidance:
    • Revised Form I-765 and instructions to make it clearer.
    • Added checkbox for H-4 dependents to simplify processing.
  2. Flexibility in documentation:
    • Acceptable secondary evidence (e.g. affidavits) if primary evidence (e.g. original petitions) is not available.
    • Applicants can also request documents from USCIS through FOIA.

Public concerns about volume, cost and integration

Integration and workforce concerns:

  • DHS said the rule allows labor market entry for a small group and is in compliance with immigration laws.
  • Expected outcomes:
    • Financial stability for H-1B families.
    • More income for local economies through employment.
    • Less labor disruption for U.S. businesses that rely on H-1B workers.

Concurrent filings for employment authorization

What was asked:

  • Commenters asked DHS to allow Form I-765 (Employment Authorization Application) to be filed with:
  • Form I-140 (Immigrant Petition for Alien Worker).
  • Form I-539 (Application to Extend/Change Nonimmigrant Status).

DHS Response:

  • Allowed: Form I-765 with Form I-539 and if applicable, Form I-129 (H-1B Petition).
  • Not allowed: Form I-765 with Form I-140.

Why Form I-765 can’t be filed with Form I-140:

  • Different processing centers: Form I-140 and Form I-765 are processed at different USCIS locations.
  • Separate eligibility processes: Determining the spousal relationship (required for H-4 eligibility) is not required for Form I-140 adjudication and complicates joint processing.

Premium Processing

What was asked:

  • Premium processing for Form I-765 applications to speed up processing.

DHS Response:

  • Denied:
    • Operational challenges prevent us from meeting premium processing times for Form I-765.
    • Premium processing is typically for employment petitions like H-1B, L-1 or E categories and select immigrant visa petitions.

Automatic extensions of work authorization

What was asked:

  • Automatic 240-day extensions of work authorization after the current EAD expires.

DHS Response:

  • Denied:
    • Automatic extensions could allow H-4 spouses to work if their underlying H-4 or H-1B status extensions are denied.
  • Recommendation:
    • File all necessary forms (I-539, I-129, I-765) on time to avoid gaps in work authorization.

Filing fees

Key comments:

  • Commenters mentioned fees:
    • Some asked for fees to be waived for H-4 dependent spouses.
    • Some said fees would generate revenue for USCIS.

DHS Response:

  • No Fee Waivers:
    • H-4 dependent spouses are married to employed H-1B workers so it’s unlikely they can’t pay the application fees.
    • Fee waivers are available on a case-by-case basis as per 8 CFR 103.7(c)(3)(viii).

EAD restrictions for H-4 dependent spouses

Proposed restrictions:

  • Caps on the number of EADs issued.
  • Prohibit working in the same occupation or with the same employer as the H-1B spouse.
  • Restrictions on specific employers or industries.

DHS Response:

  • Denied All:
    • The purpose of the rule is to retain highly skilled H-1B workers and their families by giving flexibility to H-4 spouses.
    • Quotas, limits or restrictions would defeat this purpose.

Circular EADs

Issue:

  • A commenter asked what would happen if spouses switch between H-1B and H-4 status to maintain EAD eligibility.

DHS Response:

  • Not likely:
    • Switching status would not help avoid the waiting period for LPR.
    • LPR offers many advantages (e.g. unrestricted work, U.S. citizenship eligibility) over status changes.

Fraud and Public Safety Concerns

Key issues:

  1. Resume or Credential Fraud:
    • Commenters worried H-4 spouses would fake credentials.
  2. Marriage Fraud:
    • Concerns about marriages to get employment benefits.
  3. Criminal Records:
    • Request to exclude applicants with felony charges or convictions.

DHS Safeguards:

  • Resume Fraud: Employers verify applicant credentials not DHS.
  • Marriage Fraud: H-4 spouses must submit proof of marriage to the H-1B worker. Fraud detection measures include USCIS officer training and referrals for criminal investigations.
  • Criminal Records: DHS will review on a case-by-case basis and deny if adverse findings.

Other Decisions

EAD validity:

  • EAD will match H-4 spouse’s authorized stay (up to 3 years) so no need for frequent renewals.

EAD renewals:

  • Renewal forms (I-765, I-539, I-129) can be filed up to 6 months in advance to avoid gaps in employment.

Simplified filing process:

  • I-765 instructions clarified to include acceptable evidence for spousal relationship and status.
  • Secondary evidence or affidavits allowed when primary evidence is not available.

No changes to H-1B program:

  • Comments to eliminate or modify H-1B cap, flexible filing dates or exempt H-4 spouses from H-1B cap were outside the scope of this rulemaking and need congressional action.

Immigrant Visa Processing and Adjustment of Status

Public Comments:

  • Over 30 commenters said:
    • Eliminate worldwide visa quotas to reduce backlogs.
    • Allow pre-registration of AOS applications even if visas are not available.
    • Expedite for EB-2 and EB-3 categories.
    • Issue one skilled worker visa per family unit instead of separate visas for family members.

DHS Response:

  • These are outside the scope of this rulemaking as they would require changes to the immigration laws which can only be done by Congress.

H-1B Nonimmigrants and H-4 Dependent Status

Key points:

  • H-1B status changes for H-4 spouse:
    • H-4 dependent spouse’s employment authorization is dependent on the H-1B worker maintaining status.
    • If the H-1B nonimmigrant loses status due to job loss or failure to extend status, the dependent spouse will also lose H-4 status and employment eligibility.

Environmental Considerations

Comments:

  • 9 commenters raised concerns about population growth due to increased work authorizations.

DHS Analysis:

  • Most of the people affected by this rule are already in the U.S. waiting for immigrant visas. This rule just speeds up their entry into the labor market and will not have significant environmental impacts.

Monitoring and Reporting

Public Comments:

  • Some commenters asked DHS to:
    • Track EAD adjudications for H-4 spouses.
    • Publish annual reports on this rule.

DHS Response:

  • DHS will keep records of all immigration benefits and will include H-4 EAD in the existing annual reporting.

Rule Effective Date

Public Comments:

  • Many commenters wanted the rule to be effective immediately. Some wanted a sunset provision to review after a certain period of time.

DHS Decision:

  • Effective 90 days from publication (May 26, 2015).
  • A sunset provision was not practical as it would create unequal employment authorization validity periods.

Regulatory Impact Analysis

Key Points:

  • Unfunded Mandates Reform Act of 1995:
    • This rule will not impose unfunded mandates on state, local or tribal governments or private sectors over $155 million annually (adjusted for inflation).
  • Small Business Regulatory Fairness Act of 1996:
    • This rule will not cause economic disruption, increase cost or price or negatively impact competition or productivity.

Population Impact and Volume Estimates

Current Backlog:

DHS estimates:

  • 179,600 H-4 dependent spouses will be eligible to apply for employment authorization in the first year.

New Eligibility per Year:

  • 55,000 H-4 spouses.

Methodology:

  • Data includes:
    • Approved I-140s (employment-based immigrant petitions).
    • H-1B extensions granted under AC21.

Key Assumptions:

  • Historical H-1B data shows most applicants in these categories will adjust status in the U.S.
  • Upper-bound estimate accounts for marital status and visa processing conditions.

Applicant Costs

Costs:

  • Each applicant will pay:
    • $380 I-765 filing fee.
    • $56.18 for passport-style photos and time-related expenses.
    • Total cost per applicant: $436.18.

Long-term Cost Projections:

  • Year 1:
    • 179,600 applicants: $78.3 million.
  • Subsequent years:
    • 55,000 applicants: $24 million.
    • 10 years: $219 million – $257 million (depending on discount rate).

Broader Economic and Social Benefits

Benefits:

  • Financial independence for H-4 spouses.
  • H-1B family integration into U.S. communities.

Retention of high-skilled talent for economic growth, innovation and competitiveness.

Costs related to H-4 EAD

1. Applicant Costs

H-4 dependent spouses applying for employment authorization will incur the following costs:

  • Filing Fees:
    • The I-765 filing fee for an H-4 EAD is $410 (up from $380 as USCIS increased fees recently).
    • Two passport-style photos: $20.
  • Time Costs:
    • Filing I-765 takes approximately 3 hours and 25 minutes (DHS estimate).
  • Opportunity Cost of Time:
    • DHS uses the federal minimum wage of $7.25 per hour. Adjusted for benefits (paid leave, insurance, retirement) to $10.59 per hour.
    • Opportunity cost per applicant: $36.18.
  • Total Costs per Application:
    • Fees + photos + opportunity cost = $466.18.

2. Total Costs

  • Year 1:
    • 179,600 applicants: $83.7 million.
  • Subsequent years:
    • 55,000 applicants: $25.6 million.

3. Renewals

  • Renewals will cost the same: $466.18 per application. But the number of renewals will depend on the availability of employment-based green cards which varies by preference category and country of origin.

Cost to the Federal Government

  • Fee-Based Funding:
    • USCIS fees are designed to fully recover costs of adjudication, including overhead.
    • So there is no additional cost to the federal government from the H-4 EAD program.

Economic and Geographic Impacts

1. U.S. Labor Market

  • Labor Force Entry:
    • 179,600 in year 1. 55,000 in subsequent years.
    • That’s 0.1156% of the total U.S. civilian labor force (2013 data: 155.4 million).
  • Top States:
    • States with the most H-1B visa holders (California, New York, Florida, Texas, New Jersey) will be most impacted.
  • Projected first-year workforce additions:
    • California: 35,920 (0.19% of state labor force).
    • New York: 25,144.
    • Florida: 17,960.
    • Texas: 16,164.
    • New Jersey: 8,980.

2. Wider Impacts

  • The program doesn’t introduce new workers into the U.S. economy but accelerates their entry into the labor market. This may help retain high-skilled workers by keeping families in the U.S. instead of leaving due to long green card waits.

Benefits of H-4 EAD

1. Economic Benefits

  • Financial Relief for Families:
    • Allowing spouses to work reduces financial burden on H-1B families and makes it easier to manage the cost of living in the U.S.
  • Talent Retention:
    • By supporting H-1B families, H-4 EAD helps retain high-skilled professionals in the U.S., technology, research and entrepreneurship.
  • Global Standards:
    • The U.S. is joining Canada and Australia which allow spousal work permits for temporary visa holders, making it more competitive in attracting global talent.

2. Social Benefits

  • Integration into American Society:
    • Employment opportunities lead to socio-economic advancement which correlates with better cultural integration for immigrant families.

Regulatory Impacts

1. Alternatives Considered

DHS considered several options before finalizing the H-4 EAD program:

  • Broad Eligibility for All H-4 Spouses:
    • Rejected because it would allow work authorization for spouses of H-1B holders not pursuing green cards, watering down the program.
  • Limited Eligibility:
    • Considered restricting eligibility to only H-4 spouses of H-1B holders with extensions under AC21 (H-1B extensions beyond the 6-year limit). But that was deemed too narrow and not enough to address the green card backlog.

2. Final Eligibility Criteria

  • Work authorization is available to H-4 spouses of H-1B holders who:
    • Have approved I-140 petitions, or
    • Have H-1B extensions under AC21.

3. Regulatory Changes

  • Update to Form I-765:
    • The form now has a checkbox for H-4 dependent spouses, making it easier to process and reducing errors.
  • Concurrent Filing:
    • Eligible applicants can file Form I-765 with Form I-539 (H-4 status changes), faster adjudication.

1. Public Comments

  • Over 180 comments raised issues like:
    • Filing and renewal process.
    • Premium processing for Form I-765.
    • Fraud and documentation requirements.

2. DHS Response

  • Premium processing is not available for H-4 EAD due to resource constraints.
  • Applicants do not need to demonstrate financial necessity.

Projected Outcomes and Long-Term Impact

  • Green Card Pursuits:
    • By relaxing work restrictions, H-4 EAD encourages families to stay in the U.S. while waiting for green cards.
  • Talent Retention:
    • So workers don’t abandon the process.
    • The rule: over posting

The Rule

Accordingly, DHS amends chapter I of title 8 of the Code of Federal Regulations as follows:

PART 214—NONIMMIGRANT CLASSES

1. The authority citation for part 214 continues to read as follows:

Authority: 8 U.S.C. 110111021103118211841186a11871221128112821301-1305 and 1372; sec. 643, Public Law 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 1931 note, respectively; 48 U.S.C. 18068 CFR part 2.

2. Section 214.2 is amended by revising paragraph (h)(9)(iv) to read as follows:

§ 214.2

Special requirements for admission, extension, and maintenance of status.

(iv) H-4 dependents. The spouse and children of an H nonimmigrant, if they are accompanying or following to join such H nonimmigrant in the United States, may be admitted, if otherwise admissible, as H-4 nonimmigrants for the same period of admission or extension as the principal spouse or parent.

H-4 nonimmigrant status does not confer eligibility for employment authorization incident to status. An H-4 nonimmigrant spouse of an H-1B nonimmigrant may be eligible for employment authorization only if the H-1B nonimmigrant is the beneficiary of an approved Immigrant Petition for Alien Worker, or successor form, or the H-1B nonimmigrant’s period of stay in H-1B status is authorized in the United States under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Public Law 106-313, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273 (2002).

To request employment authorization, an eligible H-4 nonimmigrant spouse must file an Application for Employment Authorization, or a successor form, in accordance with 8 CFR 274a.13 and the form instructions. If such Application for Employment Authorization is filed concurrently with another related benefit request(s), in accordance with and as permitted by form instructions, the 90-day period described in 8 CFR 274.13(d) will commence on the latest date that a concurrently filed related benefit request is approved.

An Application for Employment Authorization must be accompanied by documentary evidence establishing eligibility, including evidence of the spousal relationship and that the principal H-1B is the beneficiary of an approved Immigrant Petition for Alien Worker or has been provided H-1B status under sections 106(a) and (b) of AC21, as amended by the 21st Century Department of Justice Appropriations Authorization Act, the H-1B beneficiary is currently in H-1B status, and the H-4 nonimmigrant spouse is currently in H-4 status.

PART 274a—CONTROL OF EMPLOYMENT OF ALIENS

3. The authority citation for part 274a continues to read as follows:

Authority: 8 U.S.C. 110111031324a; Title VII of Public Law 110-22948 U.S.C. 18068 CFR part 2.

4. Section 274a.12 is amended by adding a new paragraph (c)(26), to read as follows:

§ 274a.12

Classes of aliens authorized to accept employment.

*

(c) *

(26) An H-4 nonimmigrant spouse of an H-1B nonimmigrant described as eligible for employment authorization in 8 CFR 214.2(h)(9)(iv).

*

5. Section 274a.13 is amended by revising the first sentence of paragraph (d), to read as follows:

§ 274a.13

Application for employment authorization.

*

(d) Interim employment authorization. USCIS will adjudicate the application within 90 days from the date of receipt of the application, except as described in 8 CFR 214.2(h)(9)(iv), and except in the case of an initial application for employment authorization under 8 CFR 274a.12(c)(8), which is governed by paragraph (a)(2) of this section, and 8 CFR 274a.12(c)(9) in so far as it is governed by 8 CFR 245.13(j) and 245.15(n). *

*

Jeh Charles Johnson, Secretary.

Background on Save Jobs USA Litigation

Regardless of what Trump does in 2025 on the H-4 EAD, there will likely be extensive litigation in federal courts. Becoming familiar with the history of the litigation will be helpful in understanding how future litigation may play out.

D.C. Circuit Affirms District Court’s Grant of Summary Judgment to DHS in Save Jobs USA v. DHS H-4 EAD Litigation

8/2/24  AILA Doc. No. 15052675. Business ImmigrationH-1B & H-1B1 Specialty Occupation

August 2, 2024

The D.C. Circuit affirmed the district court’s decision awarding summary judgment to DHS, holding that Save Jobs USA had not meaningfully distinguished the case from binding precedent in Washington Alliance of Technology Workers v. DHS, in which the court held that the 2016 STEM Optional Practical Training (OPT) regulations were within DHS’s statutory authority to set the time and conditions of F-1 admission. The court reasoned that its recent decision in WashTech interpreted the INA to authorize immigration-related employment rules like the H-4 EAD rule, and that Save Jobs USA had made little effort to dispute that reading of WashTech. (Save Jobs USA v. DHS, et al., 8/2/24)

February 8, 2024

After SCOTUS denied cert. in Save Jobs USA v. DHS, et al., the plaintiffs appealed to the DC circuit court. AILA and AIC filed an amicus brief urging the circuit court to affirm the district court decision granting summary judgment.

The amici brief counters appellant’s argument that DHS does not have the authority to permit certain H-4 spouses to work by providing a detailed explanation of the shared congressional and executive responsibility in the INA that the executive followed for almost 35 years in authorizing work for certain categories of noncitizens and its subsequent ratification in 1986 when Congress explained that a noncitizen was “unauthorized” for purposes of the new employment verification provisions if not “authorized to be so employed by this Act or by the Attorney General.” 8 U.S.C. § 1324a(h)(3)(B).

October 30, 2023

The U.S. Supreme Court denied the petition for a writ of certiorari before judgment, leaving in place the March 2023 ruling from the U.S. District Court for the District of Columbia granting summary judgment in favor of DHS. Justice Kavanaugh took no part in the consideration or decision of the petition. (Save Jobs USA v. DHS, et al., 10/30/23)

March 28, 2023

Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia granted DHS’s motion for summary judgment, concluding that DHS possessed the requisite statutory authority to issue the H-4 EAD rule, and that the plaintiff had failed to demonstrate that the H-4 EAD rule was arbitrary and capricious. (Save Jobs USA v. DHS, et al., 3/28/23)

April 2, 2021

On April 2, 2021, Save Jobs USA filed its second renewed motion for summary judgment in the U.S. District Court for the District of Columbia. The updated court schedule is provided below:

May 3 – Defendant’s combined opposition and cross-motion
May 17 – Intervenor’s combined opposition and cross-motion
May 31 – Plaintiff’s combined oppositions and replies
June 14 – Defendant’s reply
June 28 – Intervenor’s reply

February 2, 2021

In light of recent executive and administrative actions, on February 2, 2021, Judge Chutkan ordered a joint status report due by March 5, 2021, advising the court: 1) whether the current dispute has been mooted or the parties anticipate that it will be mooted; 2) whether the parties wish to stay this action for any reason, including the parties’ negotiations over resolving this dispute; or 3) whether the parties agree that this litigation should continue as anticipated pursuant to the federal rules, local rules or a scheduling order.

October 5, 2020

On October 5, 2020, the parties provided a joint status report to the court. In the joint status report, DHS stated “[A]lthough DHS formally submitted the proposed rule, titled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization (“H-4 EAD proposed rule”) to both the Office of Management and Budget (“OMB”) and Office of Information and Regulatory Affairs (“OIRA”) for review under Executive Order 12866 on February 20, 2019, this proposed rule is still in the same stage due to urgent competing priorities that have arisen during the COVID-19 pandemic.”

Save Jobs asked to move promptly for summary judgment. Immigration Voice (Intervenors) asked for a stay until after the Presidential election.

November 8, 2019

The court reversed the U.S. District Court for the District of Columbia’s 2016 grant of summary judgment in favor of DHS, concluding that Save Jobs USA had demonstrated that DHS’s H-4 EAD rule would subject its members to an actual or imminent increase in competition, and that it therefore has standing to pursue its challenge. (Save Jobs USA v. DHS, 11/8/19)

September 16, 2019

In a letter to the court, DHS states that,
“The proposed rule is currently undergoing the interagency process as required by Executive Order 12866. As previously indicated, DHS’s intention to proceed with publication of the H-4 EAD proposed rule remains unchanged. At this point, DHS has informed counsel that it believes the earliest possible publication date for that rule would be in spring 2020. Although that timeframe is aspirational, DHS believes that the September 27, 2019 oral argument should be removed from the calendar and postponed and DHS ordered to provide status updates in accordance with a schedule the Court deems appropriate.” (emphasis added)

In a response to order to show cause, Save Jobs USA argued that the appeal should move forward and that the court should hold oral argument as scheduled.

Immigration Voice, Sudarshana Sengupta, and Anuj Dhamija, submitted a letter, arguing that “based on prudential considerations and in the interest of judicial economy the oral argument should be removed from the argument calendar and indefinitely postponed.”

March 13, 2019

On March 13, 2019, the D.C. Circuit Court of Appeals granted the appellee’s consent motion for a 14-day enlargement of all parties’ briefing deadlines. The following revised briefing schedule will now apply in this case:

  • Appellee’s Brief – April 1, 2019
  • Intervenor for Appellee’s Brief – April 8, 2019
  • Appellant’s Reply Brief – April 29, 2019

(Save Jobs USA v. DHS, 3/13/19)

January 23 , 2019

On January 23, 2019, the D.C. Circuit Court of Appeals granted the appellee’s motion for an enlargement of all parties’ briefing deadlines. The following revised briefing schedule will now apply in this case:

  • Appellee’s Brief – March 18, 2019
  • Intervenor for Appellee’s Brief – March 25, 2019
  • Appellant’s Reply Brief – April 15, 2019

(Save Jobs USA v. DHS, 1/23/19)

December 17 , 2018

On December 17, 2018, the D.C. Circuit Court of Appeals granted a motion to intervene that Immigration Voice, a non-profit organization, filed with the court in March 2017. The court also ordered the case to be removed from abeyance and directed the clerk to enter a briefing schedule. The following briefing schedule will apply in this case:

  • Appellant’s Replacement Brief & Appendix – January 16, 2019
  • Appellee’s Brief – February 15, 2019
  • Intervenors for Appellee’s Brief – February 22, 2019
  • Appellant’s Reply Brief – March 15, 2019

(Save Jobs USA v. DHS, 12/17/18)

September 21, 2018

DHS submitted a status report in the case, which is still being held in abeyance. The status report indicates that DHS’s intention to proceed with publication of an NPRM concerning the H-4 EAD Rule remains unchanged and that DHS continues to proceed in line with that intention. Since the filing of the status report on 8/20/18, DHS senior leadership has reviewed the proposed rule and returned it to USCIS this month for revisions. When the necessary revisions are incorporated, USCIS will return the proposed rule to DHS for final clearance and submission to OMB. DHS anticipates that the rule will be submitted to OMB within three months. (Save Jobs USA v. DHS, 9/21/18)

August 20, 2018

DHS submitted a status report in the case, which is still being held in abeyance. The status report indicated that final DHS clearance of the proposed rule to remove from regulations certain H-4 spouses of H-1B nonimmigrants as a class of noncitizens eligible for employment authorization is ongoing. Senior levels of DHS leadership are actively considering the terms of the proposed rule for approval. Once it is cleared through DHS, it will be sent to the Office of Management and Budget (OMB) for review. (Save Jobs USA v. DHS, 8/20/18)

May 22, 2018

DHS submitted a status report in the case, which is still being held in abeyance. The status report indicated that the proposed rule to remove from regulations certain H-4 spouses of H-1B nonimmigrants as a class of noncitizens eligible for employment authorization is currently in final DHS clearance. Once it is cleared through DHS, it will be sent to the Office of Management and Budget for review. (Save Jobs USA v. DHS, 5/22/18)

February 28, 2018

DHS submitted a status report in the case, which is still being held in abeyance. The status report indicated that DHS intends to publish a Notice of Proposed Rulemaking to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of noncitizens eligible for employment authorization by June 2018. (Save Jobs USA v. DHS, 2/28/18)

According to USCIS data, 104,750 H-4 spouses have received employment authorization under the current H-4 employment authorization rule, which was published at 80 FR 10284 on 2/25/15.

November 17, 2017

The D.C. Circuit Court of Appeals granted the government’s motion to hold proceedings in abeyance pending further order of the court and denied the motion to reschedule briefing and oral argument. Parties were directed to file motions to govern further proceedings by January 2, 2018.

 September 27, 2017

DHS filed a motion to hold proceedings in abeyance through December 31, 2017. (Save Jobs USA v. DHS, 9/27/17)

September 20, 2017

Save Jobs USA filed a motion to reschedule briefing and oral argument.

June 23, 2017

The D.C. Circuit Court of Appeals granted the government’s motion to hold the proceedings in abeyance and denied the motion to reschedule briefing and oral argument. Parties were directed to file motions to govern further proceedings by September 27, 2017.

April 3, 2017

The government filed a motion with the D.C. Circuit Court of Appeals requesting that the court hold the proceedings in abeyance for 180 days, up to and including September 27, 2017, to permit DHS to reconsider the H-4 EAD rule and whether it should revise the rule through notice-and-comment rulemaking. (Save Jobs USA v. DHS, 4/3/17)

 September 27, 2016

The U.S. District Court for the District of Columbia granted summary judgment in favor of DHS, holding that Save Jobs USA lacked Article III standing to challenge DHS’s H-4 EAD rule.

May 24, 2015

Memorandum opinion denying Save Jobs motion, finding that Save Jobs failed to show it would suffer irreparable harm absent preliminary relief.

April 23, 2015

A group of tech workers formed by Americans who were employed at Southern California Edison, filed a complaint for declaratory and injunctive relief and a motion for preliminary injunction staying the implementation of USCIS’s final rule on employment authorization for certain H-4 dependent spouses.

H-4 EAD FAQs under Trump Policies 2025

H-4 EAD General Questions

Legal and Preparatory Steps

Work and Employment Issues

Family and Personal Issues

Policy Questions

Long term Immigration Strategies

Special Cases

If you are on H-4, navigating work authorization and preparing for potential changes under a Trump administration requires expertise. Herman Legal Group has the experience and personal attention to help you understand your rights, H-4 EAD options and alternative paths to work authorization.

With a history of advocating for immigrants through changing regulations, their team will provide you with current and customized legal strategies for your situation. By working with Herman Legal Group you will feel at ease and have a plan for your professional and personal life in the US.

Related Resources

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DHS Supplements H-2B Cap 2025

On December 15, 2024, the Department of Homeland Security (DHS), in collaboration with the Department of Labor (DOL), has announced plans to issue an additional 64,716 H-2B temporary nonagricultural worker visas for the Fiscal Year (FY) 2025. This supplement is in addition to the congressionally mandated 66,000 H-2B visas issued annually and matches the supplemental numbers from FY 2024.

This step aims to address labor shortages in seasonal industries, strengthen worker protections, and reduce irregular migration into the United States. Employers must prioritize hiring American workers before seeking foreign labor due to worker shortages in various industries.

Additionally, half allocation reserved for the second half of the fiscal year will address peak seasonal labor demands. Here’s a breakdown of the key information and what it means for businesses and workers.

Introduction to the H-2B Visa Program

The H-2B visa program is a vital component of the United States’ immigration system, allowing American businesses to hire foreign nationals for temporary, non-agricultural work. This program is designed to address labor shortages in various industries, ensuring that employers can meet their workforce needs and maintain a competitive edge in the global market.

By providing a legal pathway for hiring temporary foreign workers, the H-2B visa program supports American businesses in sectors such as hospitality, tourism, landscaping, and seafood processing, which are often hit hardest by seasonal labor shortages.

What is the H-2B Visa Program?

The H-2B visa program is a non-immigrant visa program that permits U.S. employers to hire foreign workers for temporary, non-agricultural labor or services. Administered by the Department of Homeland Security (DHS) and the Department of Labor (DOL), the program requires employers to demonstrate that there are not enough U.S. workers available, willing, and qualified to perform the temporary work.

This ensures that the employment of foreign workers does not negatively impact the job opportunities, wages, or working conditions of U.S. workers.

Understanding the H-2B Visa Program for Seasonal and Temporary Workers

The H-2B visa program allows U.S. employers to hire foreign seasonal and temporary workers for temporary nonagricultural jobs under specific conditions:

  • Types of work: Seasonal, peakload, one-time, or intermittent needs.
  • Eligible industries: Hospitality, tourism, landscaping, seafood processing, and others facing labor shortages.
  • Employer requirements:
    • Demonstrate efforts to recruit U.S. workers first.
    • Ensure the employment of H-2B workers does not negatively affect wages or conditions for U.S. workers.

Key Highlights of the FY 2025 Supplemental Visa Allocation

1. Additional 64,716 Visas

  • This allocation represents the maximum permitted by Congress for FY 2025.
  • The DHS has consistently provided supplemental H-2B visas in previous years, from FY 2017 through FY 2024, under temporary statutory authority.

2. Distribution of Supplemental Visas

  • 20,000 visas reserved for workers from the following countries:
    • Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.
  • 44,716 visas allocated for returning workers, defined as:
    • Those who held H-2B visas or were granted H-2B status during one of the last three fiscal years.
  • Visas will be distributed across the fiscal year:
    • First half: To address immediate needs.
    • Second half: Includes a reserve for peak summer demand.

Eligibility and Application Process

To participate in the H-2B visa program, employers must meet specific eligibility requirements and follow a multi-step application process. First, employers must test the U.S. labor market by advertising job openings to U.S. workers and documenting their recruitment efforts. If they can prove a shortage of willing, qualified, and available U.S. workers, they can then obtain certification from the DOL.

This certification confirms that hiring foreign workers will not harm existing U.S. workers’ wages or working conditions. Finally, employers must submit an H-2B petition through U.S. Citizenship and Immigration Services (USCIS) to bring in foreign workers.

Protecting Workers and Ensuring Compliance

Both DHS and DOL prioritize safeguarding the rights of both U.S. and foreign workers under the H-2B program by implementing robust measures to address labor shortages for seasonal businesses that struggle to find enough temporary employees:

  • Recruitment safeguards:
    • Employers must actively seek U.S. workers before hiring foreign labor.
    • Certification from DOL confirms a lack of available and qualified U.S. workers.
  • Worker protections:
    • Prevent exploitation of H-2B workers.
    • Strict regulations to ensure wages and conditions for U.S. workers are not adversely impacted.
  • Enforcement:
    • Employers who fail to comply face penalties and potential bans from the program.

DHS Statement on Economic Growth

Secretary of Homeland Security Alejandro N. Mayorkas emphasized the program’s role in strengthening the U.S. economy by:

  • Supporting businesses facing seasonal labor shortages.
  • Helping stabilize consumer prices.
  • Enhancing worker protections and discouraging irregular migration.

Statements from Others

On November 15, 2024, Rosanna Maietta, President and CEO of the American Hotel & Lodging Association (AHLA), responded to the Department of Homeland Security’s (DHS) decision to release 64,716 supplemental H-2B temporary nonagricultural worker visas for the 2025 fiscal year.

These visas are critical to supporting labor shortages in the hospitality industry and other seasonal sectors.

  • “AHLA applauds DHS for announcing this important, sizeable increase in the number of H-2B visas, which will make it easier for small business hoteliers to access the seasonal workers they need,” said AHLA President & CEO Rosanna Maietta.
  • “As chair of the H-2B Workforce Coalition, we welcome this decision, while urging Congress to step in and create a more predictable system based on the need for workers instead of the arbitrary, outdated H-2B visa caps in place today. We look forward to working with members of Congress to achieve just that.”

On December 15, 2024, U.S. Senators Susan Collins and Angus King stated:

  • “The release of over 64,000 additional H-2B visas is a welcome relief for small businesses throughout Maine that continue to face a shortage of employees.”
  • “These visas are a lifeline for our state’s economy, helping businesses meet the increasing demand for their products and services, especially as we enter the winter tourism season.”

Congresswoman Chellie Pingree (D-Maine) welcomed news from the Biden-Harris Administration that the Department of Homeland Security (DHS) and Department of Labor (DOL) will double the number of available H-2B temporary nonagricultural worker visas available for Fiscal Year (FY) 2025 to nearly 131,000.

  • “H-2B visas are essential for seasonal businesses that depend on temporary workers, including many here in Maine— hotels, ski resorts, seafood processors, restaurants, and other industries across the country,” said Pingree.
  • “When these businesses have certainty and stability, Maine communities and our economy thrive. Common sense immigration policies like the H-2B visa program help address the workforce shortages that small businesses in Maine continue to face. These seasonal worker visas have strong bipartisan support in Congress, and as a leader on the House Appropriations Committee, I’m proud to spearhead efforts to expand and improve the H-2B program.”

Benefits of the Increased Cap

The increased H-2B visa cap for Fiscal Year 2025 is expected to have a positive impact on American businesses and the U.S. economy. By allowing more foreign workers to enter the country, the increased cap will help address labor shortages in key industries, support small businesses and seasonal employers, and boost economic growth and competitiveness in the United States. This move demonstrates the U.S. government’s commitment to supporting American businesses and ensuring they have the workforce needed to thrive.

Supporting Small Businesses and the U.S. Economy

The increased cap will provide relief to small businesses and seasonal employers who rely heavily on temporary foreign workers to meet their labor needs. By allowing more foreign workers to enter the country, the increased cap will help to:

  1. Address labor shortages in key industries, such as hospitality, tourism, and landscaping.
  2. Support small businesses and seasonal employers who cannot find enough U.S. workers to fill temporary positions.
  3. Boost economic growth and competitiveness in the United States.
  4. Provide opportunities for foreign workers to earn higher wages and contribute to their home economies.

By increasing the H-2B visa cap, the U.S. government is demonstrating its commitment to supporting American businesses and addressing labor shortages in key industries. The increased cap will provide relief to small businesses and seasonal employers, while also promoting economic growth and competitiveness in the United States.

How Employers Can Apply

Employers seeking to hire H-2B workers must follow a series of steps:

  1. Test the U.S. labor market:
    • Advertise job openings to U.S. workers.
    • Document recruitment efforts and outcomes.
  2. Obtain certification from DOL :
    • Prove a shortage of willing, qualified, and available U.S. workers.
    • Ensure that hiring foreign workers will not harm existing U.S. workers’ wages or working conditions.
  3. Submit an H-2B petition:
    • Apply through U.S. Citizenship and Immigration Services (USCIS) to bring in foreign workers.

Limitations and Conditions

  • The maximum stay under H-2B classification is three years.
  • After reaching this limit, workers must:
    • Leave the U.S. for at least three uninterrupted months before reapplying.
  • Employers must ensure all filings are compliant with current regulations to avoid delays or penalties.

What’s Next?

  • A temporary final rule outlining further details, eligibility, and filing requirements will be published soon.
  • Updated information will be made available on the USCIS website.

This expanded visa allocation of visas for fiscal year through FY 2025 provides a critical lifeline for U.S. businesses facing labor shortages, while balancing protections for U.S. and foreign workers alike. By addressing these challenges, the DHS aims to promote economic growth and reduce irregular migration effectively.

Expert Legal Help At Herman Legal Group, LLC

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Immigrant Safety and Emergency Plan: What Can I Do to Protect Myself and My Family?

Understanding Your Immigration Status

Don’t Panic: No Immediate Changes

We understand that there is a lot of anxiety and fear over Trump’s election and his stated goals of initiating a deportation agenda. Here are some things to keep in mind:

  • Breathe: Trump won’t be president until January 20, 2017 and nothing can change before then.
  • No instant changes: Even after inauguration, big changes to immigration policies will take time. For example, increasing deportations would require hiring and training more agents which isn’t an overnight process.
  • Uncertainty remains: We know immigration policies will change but we don’t know how. Campaign promises often don’t translate to actual policies.

Key Points to Remember

If You’re a U.S. Citizen

  • You’re good. Nothing about Trump’s election changes your rights or citizenship.

If You Have a Green Card (Permanent Resident)

You’re probably good. Green card holders can only be deported under specific circumstances such as certain criminal convictions or fraudulent claims of U.S. citizenship. Even in those cases a judge has to review and rule on the matter.

If You Have a Pending Application

  • Nothing has changed. The programs to apply for visas, green cards, etc. are still in place. The President can’t change immigration laws without Congress and that’s a long process.

Knowing your immigration status is crucial for making informed decisions about your future. Your immigration status can determine your eligibility for certain forms of immigration relief, such as visas, work permits, or even a green card. It can also affect your ability to work, access education and healthcare, and travel.

There are various types of immigration status, including lawful permanent resident (green card holder), refugee, asylum seeker, and undocumented immigrant. Each status comes with its own set of rights and responsibilities.

If you are unsure about your immigration status, it is essential to consult with an attorney who specializes in immigration law. An experienced attorney can help you understand your current status and provide guidance on the best course of action. They can also assist you in determining if you are eligible for any forms of immigration relief.

Understanding your immigration status is the first step in protecting yourself and your family. By knowing where you stand, you can make more informed decisions and take proactive steps to secure your future.

Trump Deportation Plan Tips

Trump says his new administration will be the biggest deportation mission in US history.

With immigration policies changing, undocumented individuals and their families are more uncertain. Being proactive now will help keep your family safe and you better prepared for whatever comes next.

If you are interested in finding out what you can to can do to protect yourself and your loved ones, the article below provides quick top tips to follow. The full version of the Immigrant Safety Plan can be found here.

1. Know Your Rights

In interactions with law enforcement or immigration officials, know your rights.

  • Right to Remain Silent: You don’t have to answer questions about your immigration status. Carry a “red card” that says you have the right to remain silent.
  • Right to an Attorney: You can refuse to sign documents without an attorney.
  • Don’t Open the Door: Without a warrant signed by a judge, you don’t have to let law enforcement into your home.

Practice

  • Practice with family members to calmly assert your rights so everyone knows what to say or do in stressful situations.

2. Get Legal Help

Legal representation is key to navigating the complex immigration system. Do:

If you can’t afford an attorney, look into pro bono legal services or non-profit organizations that can help.

Note: If you have some legal status but not a green card or citizenship, look into upgrading:

  • Green Card Holders: Check if you’re eligible for U.S. citizenship.
  • Visa Holders: Look into options to become permanent resident.

3. Gather Important Documents

Collect and organize documents that will be crucial in the event of an emergency.

Documents to Collect:

  • Identification: Passports, city IDs and driver’s licenses.
  • Immigration Records: Any receipts, applications or notices from immigration authorities.
  • Vital Records: Birth certificates, marriage certificates and other family related documents (translated if necessary).
  • Medical Records: Prescription information, treatment and medical conditions.
  • Financial Records: Bank statements, pay stubs and tax filings.

Storage Tips:

  • Store originals in a safe and secure place like a fireproof safe.
  • Share copies with a trusted friend or family member.
  • Keep digital backups encrypted.

4. Family Emergency Plan

Having a clear plan can reduce stress in an emergency. Involve all family members in creating and practicing the plan.

Components of a Family Plan:

  • Designate Guardians for Children: Choose an adult to take care of your children if you are detained. Undocumented parents face significant concerns about detention or deportation, which can cause anxiety and educational challenges for their U.S.-born children. Creating an emergency preparedness plan is crucial to mitigate these impacts.
  • Emergency Contacts: Make a list of people to call in case of an emergency, including attorneys and consulates.
  • Childcare Instructions: Give guardians medical info, school info and routines for your children.
  • Schools: Make sure schools have updated emergency contact info and know about guardianship arrangements.

Legal Documentation:

  • Power of Attorney: Give a trusted person the authority to make decisions for your children.
  • U.S.-Born Children: Make sure they have valid passports and register their birth with your consulate.

5. Financial Preparedness

Protect your financial assets and have financial security and stability for your family.

  • Joint Accounts: Set up joint accounts or give a trusted family member access to manage household expenses.
  • Power of Attorney: Designate someone to make financial decisions for you.
  • Save Emergency Funds: Create a savings for rent, food and legal fees. Financial planning is crucial, including budgeting for legal expenses and securing necessary documents to manage unforeseen circumstances effectively.
  • Plan for Bond Payments: If detained, bond amounts can vary but start at $1,500 and can go up much higher. Identify someone who can post bond for you.

6. Build Community

Support networks can be a lifeline during tough times.

  • Community Organizations: Connect with local immigrant advocacy groups, religious institutions or cultural centers.
  • Language Resources: Find interpreters or language classes to improve your language skills.
  • Emergency Shelters and Support: Research local shelters and organizations that can help immediately.

7. Register with Your Consulate

Your consulate can help in emergencies like replacing documents, contacting family abroad or legal aid.

  • Contact Your Consulate: Inform them of your presence in the U.S. and keep their emergency number handy.
  • Consular ID Cards: Get identification from your consulate which may help during interactions with authorities.
  • Emergency Assistance: Consulates can provide legal aid, document replacement and contact with family members abroad.

8. Stay Informed of Policy Changes

Immigration rules can change overnight. Stay updated by:

  • Following reputable news sources.
  • Subscribing to immigrant advocacy group updates.
  • Attending community meetings and workshops on immigration policy.

9. Educate and Prepare Your Family

Your family’s awareness and preparation is just as important as yours.

  • Teach Rights: Make sure everyone knows their basic rights and emergency procedures.
  • Memorize Contacts: Have children and adults memorize key phone numbers including your attorney and consulate.
  • Practice Drills: Role play different scenarios like police encounters to reduce fear and confusion.
  • Emergency Contact List: Make a list of people to call in case of an emergency.
  • Role Assignments: Make sure family members know their roles.

10. Don’t Take Risks

Some actions can put you at risk of detention or the possibility of deportation.

  • Don’t Carry False Documents: Only carry legitimate ID.
  • Avoid High-Risk Areas: Research areas with frequent ICE enforcement.
  • Follow Local Laws: Comply with local laws to minimize interactions with authorities.

11. Stay Calm

Tips for Remaining Calm in a Highly Stressful Situation

It is important for you and your family’s safety that you do the best you can to remain calm and practice self-care.

Staying calm under stress can feel overwhelming, but adopting specific strategies can help you regain control and make rational decisions. Here’s how to manage stress effectively:

  • Breathe deeply: Practice slow, deep breaths to signal your body to relax and lower your heart rate.
  • Focus on what you can control: Redirect your energy toward manageable actions rather than worrying about the unknown.
  • Ground yourself: Use grounding techniques like naming five things you see or feel to stay present in the moment.
  • Pause before reacting: Take a few seconds to think through your response instead of acting impulsively.
  • Use positive self-talk: Remind yourself that you’re capable of handling the situation and that the moment will pass.
  • Seek support: If possible, communicate with someone you trust to share your concerns and gain perspective.
  • Stay physically still: Avoid pacing or making abrupt movements, as staying still helps reduce anxiety signals to your brain.

Practicing these techniques regularly can build resilience and prepare you for handling future challenges with greater calmness.

What Documents to Carry

  • Valid work permits, green cards or municipal IDs.
  • Attorney and consulate numbers.

Documents to Not Carry:

  • Anything that shows your country of birth.
  • False or fake documents.

Final Checklist

  • Emergency Contacts: Memorize key phone numbers.
  • A-Number: Keep your Alien Registration Number if you have one.
  • Document Copies: Have trusted people have access to backup copies.
  • Children’s Plans: Update ID, guardianship and medical arrangements.
  • Attorney Contact: Stay in touch with an immigration attorney.
  • Community Support: Stay connected to local organizations and networks.

FAQs: Safety and Emergency Plan for Undocumented Immigrant Families

Legal Documents

Children and Family

Legal and Financial

Community and Support

Technology and Communication

Health and Safety

Other

Take Action

By taking these steps, immigrant families will be better prepared to face any emergency. Prepare now and you and your loved ones will be ready.

The Herman Legal Group has been defending and protecting immigrant families for nearly 30 years. We are ready to help you.

Expert Legal Help At Herman Legal Group, LLC

24/7 Support, Just A Call Away!

December 2024 Visa Bulletin and Predictions

Limited Movement for EB Categories

The December 2024 Visa Bulletin is out from the U.S. Department of State’s Bureau of Consular Affairs. This shows the green card priority dates for employment-based and family-based categories.

This is important for green card applicants as it shows the updated priority dates that will impact how soon you can move forward in the process.

Here’s what’s new, what’s not and how it impacts I-485 (Adjustment of Status applications filed with USCIS) and DS-260 (Immigrant Visa applications filed at National Visa Center for consular processing).

December 2024 Visa Bulletin Updates

Employment-Based Categories

  • Little to No Movement for EB Categories. The December 2024 Visa Bulletin impacts employment-based preference cases by maintaining nearly the same Dates for Filing and Final Action Dates for almost all EB green card categories as in the November 2024 bulletin.
  • Below is a step-by-step breakdown of the updates, along with insights to help applicants understand the implications and plan accordingly.

Key Highlights

  • India EB-2: The Final Action date advances by two weeks to August 1, 2012.
  • India EB-3: The Final Action date advances by one week to November 8, 2012.
  • All Other Employment-Based Categories: Final Action dates remain unchanged.
  • Dates for Filing: No changes for any employment-based category compared to November 2024.

The EB-4 category, which includes certain religious workers, also remains unchanged.

Family-Based Categories

  • No movement in Final Action Dates or Filing Dates for family sponsored preference cases, compared to November 2024 Visa Bulletin.

Applicants should refer to the Dates for Filing chart to determine eligibility for various family sponsored preference categories.

What is the Visa Bulletin?

In the green card application line, the Visa Bulletin shows priority final action dates which are placeholders. Each month the U.S. Department of State calculates how many applications are in each category and determines visa availability.

The applicant’s priority date must be earlier than the cut-off dates listed in the Visa Bulletin to determine visa eligibility and whether an individual can file their application or must wait for their case to be processed, affecting all immigrant visa applicants.

There are Two Main Sections:

  • Family-Based: Wait times and filing dates for family-sponsored green cards.
  • Employment-Based: Priority dates for employment-sponsored green cards.

Current Bulletin: December 2024

Note: Dates in the bulletin are in DAY-MONTH-YEAR (dd-mmm-yy) format.

Key Terms in the Bulletin

Final Action Dates (Chart A)

  • Definition: This date is when a green card can be issued. Applications with priority dates on or before this cut-off date may be approved soon.
  • Meaning: This is the last step in the green card process. If your priority date is on or before the Final Action Date, USCIS or the Department of State can make a final decision on your case.
  • Example: If the Final Action Date for your category is 1-Oct-2018 and your priority date is 30-Sep-2018 you’re “current” and can get a decision soon.

Filing Dates (Chart B)

  • Meaning: These dates are when you can file for the next step in the green card process (Filing I-485 if eligible and in the U.S., or file DS_260 at the National Visa Center)
  • Meaning: If your priority date is on or before the Date for Filing, you can submit required documentation for the application.
  • Example: If your Date for Filing is 1-Jan-2020 and your priority date is before this date, you can submit documents to move forward.

The gap between these dates is the expected USCIS processing time and visa availability.

Two Options When Your Priority Date is Current (Chart B)

If your priority date is current, there are two choices:

  • Adjustment of Status/I-485 (if in the U.S.): Complete your green card process without leaving the country.
  • Immigrant Visa Application/DS-260 (if outside the U.S.): Proceed with consular processing to get your visa abroad.

What’s the Difference Between Chart A and Chart B?

Chart B:  Filing Dates

  • These dates are when applicants can submit more documentation (I-485 if in the U.S., or DS-260 if abroad)
  • If your priority date (the date you filed your application) is on or before the cut-off date, you can move forward.

Adjustment of Status Applications

  • USCIS will accept I-485 Adjustment of Status applications in November 2024 using the Filing Dates chart. Those with priority dates before the dates listed can file.

DS-260 Immigrant Visa Applications

  • National Visa Center (Department of Status) will notify you when to file the DS-260 Immigrant Vias Application.  The notification will follow the Visa Bulletin Chart B (Filing Dates chart).  Those with priority dates before the dates listed will be notified to file.

Chart A:  Final Action Dates

  • These are the expected dates when USCIS or the Embassy will make a final decision on your application.

The gap between Filing Dates and Final Action Dates is the processing time.

Most Common Questions

What is my priority date?

This is the date you submitted your green card application, usually without any changes. If you’re not sure of your priority date, check your immigration papers or consult with an immigration attorney.

What if my country has a backlog?

Because of high demand for immigration services, some countries have longer processing times. This can cause the cut-off dates to move or even go backward compared to the final action dates chart.

How long will I wait?

The Visa Bulletin can’t give you an exact wait time. It varies by category, visa type and country backlog. For example, the process might be faster in some countries than others, or revised process might be needed in some cases by embassies abroad.

Understanding Visa Allocation for Immediate Relatives and Employment-Based Green Cards: The Quota System

There are numerical limits to each category of family based green cards (except immediate relative relatives) and employment based green cards. Additionally, no one country can obtain more than 7% o that allotted number per year.

The allocation of visas, especially for family-sponsored and employment-based green cards, follows a complex quota system established by Congress. This system caps the number of green cards that can be issued annually in different categories, with certain exemptions, such as for immediate relatives. Understanding this system helps applicants navigate the visa process and anticipate potential wait times.

Immediate Relatives of U.S. Citizens: Unlimited Visa Allocation

For immediate relatives of U.S. citizens, there is no numerical limit on visas. Immediate relatives include:

  1. Spouses of U.S. citizens.
  2. Unmarried children under 21 of U.S. citizens.
  3. Parents of U.S. citizens (if the petitioning citizen is 21 or older).

Since there is no annual cap, applicants in this category do not face backlogs due to visa numbers. However, they must still meet eligibility requirements, go through processing at U.S. Citizenship and Immigration Services (USCIS) and the Department of State, and adhere to general application timelines.

Family-Based Green Cards: The Annual Quota System

Family-sponsored visas for other relatives (not immediate relatives) are subject to annual numerical limits based on the worldwide family preference level as determined by the Immigration and Nationality Act (INA):

  • The total annual cap for family-based immigrant visas is set at 226,000.
  • These visas are divided into preference categories, each with a specific allocation:
  • F1 (Family First Preference): Unmarried adult children of U.S. citizens – 23,400 visas per year.
  • F2 (Family Second Preference): Spouses and unmarried children of lawful permanent residents – 114,200 visas, with F2A reserved for spouses and minor children and F2B for unmarried adult children.
  • F3 (Family Third Preference): Married children of U.S. citizens – 23,400 visas per year.
  • F4 (Family Fourth Preference): Siblings of U.S. citizens – 65,000 visas per year.

Any unused visas in one category can sometimes flow into others; however, these family-based categories are typically oversubscribed, leading to lengthy wait times, particularly for applicants from countries with high demand, such as Mexico and the Philippines.

Employment-Based Green Cards: The Annual Cap and Country Limits

Employment-based green cards are subject to an annual cap of 140,000 visas. This category includes five primary preferences, each with an allocated percentage of the total:

  1. EB-1 (Priority Workers): 28.6% (approximately 40,040 visas) for individuals with extraordinary ability, outstanding professors and researchers, and certain multinational executives.
  2. EB-2 (Professionals with Advanced Degrees or Exceptional Ability): 28.6% (approximately 40,040 visas), including a set-aside for individuals from underrepresented countries.
  3. EB-3 (Skilled Workers, Professionals, and Other Workers): 28.6% (approximately 40,040 visas), with a limit of 10,000 for “other workers” (those in positions requiring less than two years of experience).
  4. EB-4 (Certain Special Immigrants): 7.1% (about 9,940 visas) for specific groups such as religious workers, international organization employees, and certain dependents of U.S. Armed Forces personnel.
  5. EB-5 (Immigrant Investors): 7.1% (about 9,940 visas) for investors who create jobs in the U.S., with regional center projects receiving a significant portion. The EB-5 category, which focuses on employment creation, allocates 7.1% of employment-based visas for investors who create jobs in the U.S.

The fourth and fifth preferences, EB-4 and EB-5, have specific numerical allocations and limitations, with 9,940 visas each. Unutilized numbers from these preferences can affect the availability of visas in higher preferences, impacting the overall distribution based on demand.

Country Limitations

Each country is limited to 7% of the total annual visas in any category, a rule that affects high-demand countries such as India and China, especially in the EB-2 and EB-3 categories. When applicants from these countries exceed their allocation, they face significant backlogs.

Key Issues with the Quota System

  1. Retrogression: High-demand countries experience “retrogression,” where the priority dates for visa eligibility move backward. This affects applicants’ timelines as the availability of visas fluctuates monthly based on demand and annual visa limits.
  2. Unused Visas: While unused family-based visas sometimes flow into employment-based categories (and vice versa), caps often result in unused visas that could otherwise reduce backlogs. Some policy proposals advocate for better reallocation of unused visas to help alleviate these delays.
  3. Per-Country Cap Impact: The 7% per-country cap, while ensuring diversity, contributes to long waits for applicants from countries with large numbers of high-skilled immigrants, leading to calls for reforms to this system. This is the reason for longer wait times for applicants from high demand countries like India, China, Mexico and Philippines.
  4. Backlogs by Country: As of June 2023 over 1.2 million employment-based immigrants are waiting for green cards with majority from India and China.
  5. Aging Out Risks: Many applicants on temporary visas in the U.S. face risks if their children “age out” at 21 and become ineligible to adjust status under their parent’s application.

For a deeper explanation, read this.

December 2024 Visa Bulleting Chart B: See the Movement

These tables help visualize the cut-off dates and movements in each category for easier reference.

Family-Based Green Card Backlogs (November 2024)

Chart B (File I-485/USCIS or DS-260NVC)

Filing Date Chart

This chart specifies when applicants can begin submitting required documentation

CategoryCountryNew Cut-Off DateOld Cut-Off DateMovement
F-1: Unmarried Children (21+ years) of U.S. CitizensAll Other Areas1-Sep-171-Sep-17No Change
China1-Sep-171-Sep-17No Change
India1-Sep-171-Sep-17No Change
Mexico1-Oct-0510 Oct -05No Change
Philippines22-Apr-1522-Apr-15No Change
F-2A: Spouses & Unmarried Children (<21 years) of U.S. Green Card HoldersAll Other Areas15-Jul-2415-Jul-24No Change
China15-Jul-2415-Jul-24No Change
India15-Jul-2415-Jul-24No Change
Mexico15-Jul-2415-Jul-24No Change
Philippines15-Jul-2415-Jul-24No Change
F-2B: Unmarried Children (21+ years) of U.S. Green Card HoldersAll Other Areas1-Jan-171-Jan-17No Change
China1-Jan-171-Jan-17No Change
India1-Jan-171-Jan-17No Change
Mexico1-Jul-061-Jul-06No Change
Philippines1-Oct-131-Oct-13No Change
F-3: Married Children of U.S. CitizensAll Other Areas22-Apr-1222-April-12No Change
China22-Apr-1222-April-12No Change
India22-Apr-1222-April-12No Change
Mexico15-Jun-0115-Jun-01No Change
Philippines8-May-048-May-04No Change
F-4: Siblings of U.S. CitizensAll Other Areas1-Mar-081-Mar-08No Change
China1-Mar-081-Mar-08No Change
India1-Aug-061-Aug-06No Change
Mexico30-Apr-0130-Apr-01No Change
Philippines22-Jul-0722-Jul-07No Change

Employment-Based Green Card Backlogs (November 2024)

Chart B (File I-485/USCIS or DS-260NVC)

The employment-based green card backlogs are a significant concern for many applicants. The availability of more immigrant visas can influence whether applicants can use the Dates for Filing chart. If there are more immigrant visas available than known applicants for such visas, USCIS will allow the use of this chart for filing adjustment of status applications, which can affect processing times and applicant eligibility.

Filing Date Chart

This chart reflects the earliest date an applicant may file their application for a green card:

CategoryCountryNew Cut-Off DateOld Cut-Off DateMovement
EB-1: Extraordinary People, Outstanding Researchers & Professors, Executives & ManagersAll Other AreasCurrentCurrentNo Change
China1-Jan-231-Jan-23No Change
India15-Apr-2215-Apr-22No Change
MexicoCurrentCurrentNo Change
PhilippinesCurrentCurrentNo Change
EB-2: Exceptional People & Advanced Degree HoldersAll Other Areas1-Aug-231-Aug-23No Change
China1-Oct-201-Oct-20No Change
India1-Jan-131-Jan-13No Change
Mexico1-Aug-231-Aug-23No Change
Philippines1-Aug-231-Aug-23No Change
EB-3Skilled Workers, ProfessionalsAll Other Areas1-Mar-231-Mar-23No Change
China15-Nov-2015-Nov-20No Change
India8-Jun-138-Jun-13No Change
Mexico1-Mar-231-Mar-23No Change
Philippines1-Mar-231-Mar-23No Change
EB-3: Unskilled WorkersAll Other Areas22-May-2122-May-21No Change
China1-Jan-181-Jan-18No Change
India8-Jun-138-Jun-13No Change
Mexico22-May-2122-May-21No Change
Philippines22-May-2122-May-21No Change
EB-4 Including Certain Religious WorkerAll Other Areas1-Feb-211-Feb-21No Change
China1-Feb-211-Feb-21No Change
India1-Feb-211-Feb-21No Change
Mexico1-Feb-211-Feb-21No Change
Philippines1-Feb-211-Feb-21No Change
EB-5: Set-Aside (Rural, High Unemployment, Infrastructure)All Other AreasCCNo Change
ChinaCCNo Change
IndiaCCNo Change
MexicoCCNo Change
PhilippinesCCNo Change
EB-5: Unreserved (including C5, T5, I5, R5)All Other AreasCCNo Change
China1-10-161-10-16No Change
India1-4-221-4-22No Change
MexicoCCNo Change
PhilippinesCCNo Change

Tracking Your Application

  • Monthly Updates: Subscribe to get notified of changes each month.
  • Watch Trends: If your category moves often, monthly tracking will give you a better idea of your timeline.

What is Priority Date Retrogression?

Priority date retrogression is when the cut-off date moves backward. In other words, the dates that were previously current for processing are now delayed due to high demand and limited visa numbers.

Retrogression can happen in any visa category (family-based or employment-based) and is influenced by the annual visa cap and country-based limits. Retrogression affects people waiting for immigrant visas (green cards) by delaying their ability to get a visa even if they were closer to processing in previous months.

Why Does Retrogression Happen?

Retrogression is mainly due to the supply and demand of visas:

  1. Demand Surge: High demand for visas in a specific category or country (India and China for example) can outpace the supply, causing cut-off dates to move backward.
  2. Annual Limits: Each year the U.S. caps the number of visas per category and per country. When those limits are met or exceeded, retrogression will occur to maintain those legal limits.
  3. Country Limits: No country can get more than 7% of the total visas in a specific category. This can create backlogs for applicants from high immigration countries.

Track Monthly Visa Bulletin Changes

The Department of State (DOS) does not send email updates for the Visa Bulletin, but the Visa Bulletin is available online. The monthly Visa Bulletin lists cut-off dates for visa availability, which determines which applicants can file for adjustment of status or permanent resident status. Enter your email address below to get monthly updates. This will help you track priority final action dates and any big movements in your category.

For more information on the Visa Bulletin and how it affects your green card application check out:

Take Away and Considerations

The Visa Bulletin is important for anyone in the U.S. immigration process. Here’s what to take away:

  • Track Priority Dates: Monitor the Visa Bulletin regularly to stay up to date on your application. Especially if you’re from a high demand country where cut-off dates move often.
  • Consult with Immigration Experts: With the complexity of the immigration process, consulting with immigration experts or attorneys can be very helpful. They can help you understand the Visa Bulletin, changes and develop a strategy for your specific case and employment based preference categories.
  • Retrogression: Retrogression is when cut-off dates move backwards, meaning longer wait times. This can happen in certain categories due to high demand. Knowing this can help you manage your expectations and plan.
  • Plan Ahead: If you’re in the process of applying for a green card, planning ahead is key. This means gathering your documents, tracking priority final action dates and preparing for changes in wait times.

By following the Visa Bulletin each month you can make informed decisions and be prepared for each step of your immigration journey.

Background Information on the Visa Bulletin

Recent Changes: USCIS and Department of State Collaboration

USCIS and the Department of State have changed how they determine visa availability to make the process more efficient. This is good for applicants as it’s consistent whether you’re applying in the U.S. or at a U.S. embassy or consulate abroad.

What This Means for Applicants:

  • Easier Process: These new procedures will prevent applicants from being delayed due to different processing practices between USCIS and consulates.
  • More Accurate: By aligning the methods the wait times may be more accurate for applicants in high demand categories.

For more information see the USCIS Revised Procedures Announcement.

Past Visa Bulletins and Historical Data

The Visa Bulletin archives go back to Fiscal Year 2002 through 2025 so you can see the changes over time.

How to Use Historical Data:

  • Track Trends: Seeing priority date movement over the years will help you forecast changes and plan ahead.
  • Compare Dates: Looking at specific months across multiple years will show you typical movement in your category.
  • Find Patterns: Some categories show consistent movement or stagnation which will give you insight into future processing times.

Example Fiscal Year Archive:

  • 2025 to 2022: Recent years.
  • 2019 to 2015: Mid-range years will show demand shifts.
  • Pre-2010: Older years will help you understand long-term patterns especially for applicants from high demand countries.

Full Final Action Date Lists

These are annual lists of the Final Action Dates for each country and category. Useful for applicants from oversubscribed countries like India, China, Mexico and the Philippines.

Family-Based Preferences by Region

  • Worldwide: For low demand countries not listed individually.
  • China (mainland-born): Trends for Chinese nationals in family categories.
  • India: Big backlogs due to high demand; you need to understand this.
  • Mexico and the Philippines: Have unique wait times in family categories.

Employment-Based Preferences by Region

  • Worldwide: Non-listed countries generally don’t move much due to low demand.
  • China (mainland-born): Shows the demand for employment-based categories.
  • India: High demand; usually the longest wait times.
  • Mexico and Philippines: Unique priority dates due to employment demand.

Note on Afghan and Iraqi Special Immigrants (SI): These applicants have special final action dates in select years. If there is no date for a year it means the category was “Current” which means no wait time.

The Numerical Control Process: How Visa Limits Affect Cut-Off Dates

To ensure even distribution of visas each category and country has numerical limits. The Numerical Control Process affects cut-off dates as it’s based on the number of visas available versus demand in each category.

How it works:

  • Visa Allocation: Each year a certain number of visas is allocated to each category and country.
  • Cut-Off Dates: When demand exceeds supply a cut-off date is set and who can move forward.
  • Retrogression: In some cases dates move backward, known as “retrogression” which can delay applicants even if they were current.

For more information the Operation of the Numerical Control Process document explains how visas are allocated and cut-off dates are set.

Tracking Your Application: Monthly Monitoring and Resources

Monthly Visa Bulletins are key to staying informed. Monitoring the bulletin regularly will help you:

  • Stay Informed: Know when your category is moving so you can plan.
  • Find Trends: Look for patterns in cut-off dates for your category to prepare.
  • Check for Retrogression: Retrogression can happen unexpectedly in high demand categories so monitoring monthly can help you avoid surprises.

More Resources and Tools

USCIS and the Department of State offer more resources to help applicants understand their green card process:

Stay up to date on Visa Bulletin releases and track your priority dates and the immigration process will be more predictable and less painful.


Adjustment of Status Filing Charts Explained: November 2024

The Adjustment of Status (AOS) Filing Chartsare key to U.S. based green card applicants to know when to file. These charts—updated monthly by USCIS and the Department of State (DOS)—tell you which chart to use, Dates for Filing or Final Action Dates.

Here we explain these charts in simple terms, how they affect AOS applications and what you need to know for November 2024.

What are USCIS Adjustment of Status Filing Charts?

USCIS releases two charts each month for adjustment of status applicants:

  1. Dates for Filing
    • This chart tells you when you can submit your AOS application. When using this chart USCIS is allowing you to file earlier than the actual visa availability.
  2. Final Action Dates
    • This chart shows when USCIS or the Department of State can approve an application. When USCIS uses the Final Action Dates chart you can only file if your priority date is before the date listed.

Note: If a category is current in the Final Action Dates chart or if the cut-off date is after the date in the Dates for Filing chart you can use the Final Action Dates chart for that month.

How USCIS Chooses the Filing Chart Each Month

USCIS decides which chart to use based on the number of visas available and the demand. If there are more visas than applicants they use the Dates for Filing chart. If there are more applicants than visas they use the Final Action Dates chart to manage demand.

  • Monthly: USCIS will designate a chart each month.
  • Announcement: The chart is usually announced within a week of the Visa Bulletin.

December 2024 Adjustment of Status Filing Chart

For December 2024 USCIS has decided to use the Dates for Filing chart for both family-sponsored and employment-based categories:

For Family-Sponsored

  • Dates for Filing chart applies to all family-based categories, you can file AOS now.

For Employment-Based

  • Dates for Filing chart applies to all employment-based categories for November 2024.

Previous Months and Historical AOS Filing Charts

If you want to track historical trends previous AOS Filing Charts are available online from 2015 to present. These archives will help you see the date movement and changes over the years which can be helpful for planning and future filing.

  • 2023: January to December
  • 2022 – 2016: Full year
  • 2015: October, November, December

Adjustment of Status Applicants

  • Monthly Check: Check the USCIS and DOS announcements every month to see which chart is being used.
  • Eligibility: Always check your category and priority date against the chart to confirm.
  • Advance Filing: When using the Dates for Filing chart you get a head start on the paperwork even if final action may take more time.

Predictions: Visa Bulletin for December 2024: Employment and Family-Based Green Card Updates

The December 2024 Visa Bulletin will tells something about how soon you can expect to move in the employment-based and family-based green card categories. While we can’t predict the future visa bulletin with 100% accuracy, here is our best estimatation.

Visa Bulletin Predictions

Visa Bulletin predictions are based on past date movement and current demand so applicants can see when they can file or get green card approval.

  • Monthly: The Visa Bulletin is released every month and shows movement in both family-based and employment-based categories.
  • Cutoff Dates: These dates are based on demand and the annual visa caps set by the State Department.

Visa Bulletin Predictions for January 2025

For millions of individuals waiting in employment-based and family-based categories, the Visa Bulletin provides essential updates about green card availability.

By reviewing the bulletin, applicants gain insight into when they might be eligible to apply for or receive their green cards. Below is a comprehensive analysis of the predictions for January 2025.

January 2025 Visa Bulletin Predictions: Family-Based Categories

These predictions provide an estimate of potential movements in family-sponsored categories for January 2025. While they offer guidance, applicants should consult with an immigration attorney for precise advice.

F1: Unmarried Adult Sons and Daughters of U.S. Citizens

  • Mexico: Likely to see no forward movement due to high demand and backlog.
  • Philippines: Minimal advancements anticipated, possibly by a few weeks.
  • All Other Countries: Expected to remain static.

F2A: Spouses and Minor, Unmarried Children of Lawful Permanent Residents (LPRs)

  • Mexico: Cutoff dates might advance slightly, given the consistent processing patterns.
  • All Other Countries: Predictions indicate stability or minor movement forward.

F2B: Unmarried Adult Sons and Daughters of LPRs

  • Mexico: Unlikely to advance significantly due to consistent demand.
  • Philippines: May see modest movement.
  • All Other Countries: Expected to remain unchanged.

F3: Married Adult Sons and Daughters of U.S. Citizens

  • Mexico: Anticipated to remain static.
  • Philippines: Limited movement, potentially advancing by a few weeks.
  • All Other Countries: No significant changes predicted.

F4: Brothers and Sisters of U.S. Citizens

  • Mexico: No forward movement expected due to significant backlogs.
  • India: Predicted to remain unchanged.
  • Philippines: Minimal or no movement anticipated.
  • All Other Countries: Expected to stay static.

Family-Based Visa Allocation Numbers

Family-based green card categories have specific numerical limits:

  • F1 (Unmarried Adult Sons and Daughters of U.S. Citizens): 23,400 plus unused numbers from F4.
  • F2 (Spouses, Children, and Unmarried Sons and Daughters of LPRs): 114,200 plus any surplus from the worldwide family preference limit exceeding 226,000.
    • F2A: 77% of F2 allocation (75% exempt from per-country limits).
    • F2B: 23% of F2 allocation.
  • F3 (Married Adult Sons and Daughters of U.S. Citizens): 23,400 plus unused F1 and F2 numbers.
  • F4 (Brothers and Sisters of U.S. Citizens): 65,000 plus unused numbers from F1, F2, and F3.

January 2025 Visa Bulletin Predictions: Employment-Based Categories

Predictions for employment-based categories in January 2025 suggest possible retrogression due to high demand, particularly in the EB-2 and EB-3 categories. Below are category-specific insights:

EB-1: Priority Workers

  • India: Unlikely to see advancement; may remain static.
  • China: No forward movement expected.
  • All Other Countries: Predicted to stay current.

EB-2: Advanced Degrees and Exceptional Ability

  • India: Potential for retrogression due to high demand.
  • China: Expected to remain stable but could retrogress slightly.
  • All Other Countries: May experience minor retrogression if demand continues to rise.

EB-3: Professionals and Skilled Workers

  • India: Limited advancement, possibly by a week or two.
  • China: Likely to stay unchanged.
  • All Other Countries: Risk of retrogression due to increased demand.

Key Insights from the State Department

The U.S. State Department has highlighted the following challenges for employment-based categories:

  1. High Demand in EB-2: Increased demand worldwide may necessitate retrogression to keep visa numbers within the annual FY 2024 limits.
  2. High Demand in EB-3: Similar to EB-2, retrogression is possible to manage demand effectively.
  3. Conservative Advancements: The State Department will advance dates cautiously in January 2025 to avoid overuse of available visa numbers early in FY 2025.

Employment Preference Numbers:

  • EB-1: 28.6% of the worldwide employment-based visa limit + EB-4 and EB-5 numbers
  • EB-2: 28.6% of worldwide limit + EB-1 numbers
  • EB-3: 28.6% of worldwide limit with a portion for unskilled workers
  • EB-4: 7.1% of worldwide limit for special immigrants
  • EB-5: 7.1% of worldwide limit with set-asides for rural, high unemployment and infrastructure investments

Impact of High Demand and Retrogression

The U.S. Department of State has previously noted that demand in EB-2 and EB-3 may require retrogression especially for India, China, Mexico and Philippines. This is to keep visa usage within annual limits and adjust the flow of applications accordingly.


Per-Country Cap: No country can get more than 7% of the total family-based or employment-based visas in a year. This is the reason for longer wait times for applicants from high demand countries like India, China, Mexico and Philippines.

Sample Data for Employment-Based Backlogs (June 2023)

CategoryIndiaChinaMexicoPhilippinesRest of World
EB-110,0495,762000
EB-2426,46540,03988930725,292
EB-3133,40921,6958868,33112,602
Other Workers2521,3275,3832,77216,409

Total Applicants Waiting: Over 1.2 million across categories, with India representing a significant portion of the backlog.

Dates for Filing Chart in Effect

  • For December 2024, USCIS will use the Dates for Filing chart for EB AOS applications. This means applicants with priority dates earlier than the cut-off dates can file I-485.

No Priority Dates Movement

  • The same cut-off dates on both the Dates for Filing and Final Action charts indicates that Department of State is following a quarterly adjustment and not monthly as previously announced.

Visa Bulletin FAQs

The U.S. immigration system and immigration services can be complex, but with the right information and resources you can make informed decisions about your green card application and filing chart. The Visa Bulletin is a key tool in this process, showing wait times and priority final action dates for each category. By staying informed and proactive you can increase your chances of a successful and timely green card application.

Herman Legal Group will be tracking Visa Bulletin changes.

  • Stay Connected
  • Follow Herman Legal; Group on LinkedIn, Instagram, and subscribe to their webinars and podcasts for the latest information and updates.

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Federal Judge Strikes Down Biden’s Parole in Place for Undocumented Spouses

On November 7, 2024 A federal district court judge in Texas just blocked the Biden administration’s “Keeping Families Together” (KFT) program which allowed certain undocumented spouses of U.S. citizens to stay in the country, work legally and pursue green cards without fear of deportation.

This 74 page ruling is permanent, subject to appeal, and a big blow to the Biden administration’s immigration policy.

Key Facts

Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas, a Trump appointee in 2018, ruled that the administration exceeded its authority by implementing the program without congressional approval.

The district court judge’s decision came after a lawsuit was filed by 16 Republican-led states, led by Texas Attorney General Ken Paxton, which argued the policy imposed an undue burden on states by increasing the cost of public services.

In his opinion, Judge Barker said the Biden administration’s legal interpretation of immigration law “stretches the law past its breaking point.” He also denied a request from those who benefit from the program to intervene in the case to defend it.

What is the “Keeping Families Together” Program?

The “Keeping Families Together” program which was launched in August 2024 was designed to help mixed-status families—where one spouse is a U.S. citizen and the other is undocumented—avoid long term separations.

This policy addressed the challenges faced by mixed-status families and was expected to impact 750,000 to 800,000 people.

Undocumented spouses have to leave the U.S. to apply for legal residency which can take years. The KFT program provided a pathway for these immigrant spouses to stay in the U.S. legally through a process called “parole in place.”

The KFT program provided deportation protections for undocumented spouses, allowing them to stay in the U.S. legally through a process called “parole in place.”

The Biden administration’s “Keeping Families Together” policy was supposed to support family unity and provide safety for undocumented spouses and stepchildren of U.S. citizens.

Under this program eligible individuals could apply for a green card without having to leave the U.S. to complete the process. The policy was supposed to reduce family separation caused by immigration backlogs and complex procedures.

Eligibility Requirements:

To be eligible you had to:

  • Have been in the U.S. for at least 10 years.
  • No security threat.
  • Married to a U.S. citizen as of June 17, 2024.
  • Process and Benefits: Approved applicants would get temporary protection from deportation, work authorization and 3 years to pursue permanent residency. The application was $580 and a detailed explanation of why you deserved humanitarian parole.

Key Facts of the KFT Program:

  • Legally Remain: Spouses of U.S. citizens could apply to stay in the U.S. legally.
  • Work Authorization: Eligible spouses could get work permits.
  • Stepchildren: Stepchildren under 21 could be included in the application.
  • 3 years of Legal Status: Approved applicants would get 3 years of legal status in the U.S.
  • Impact: DHS estimated 500,000 families would have benefited from this policy.

Timeline of the Lawsuit

The lawsuit against the program started almost immediately after it was launched. Here’s the timeline:

States’ Lawsuit

These officials along with many Republican lawmakers argued that the Biden administration didn’t have congressional authority to do this policy.

They also argued that the program would put a strain on states’ budgets by adding more people eligible for public benefits.

They argued that Congress had not granted the executive branch the statutory authority to implement such a policy, highlighting concerns over executive overreach.

  • Points: Opponents said the policy was a political end-run around Congress, giving legal benefits to undocumented immigrants.
  • State Impact: Texas and other states said it would add to the state’s budget.
  • Attract More Undocumented Migrants:  It would attract more migrants to the U.S. and potentially more unauthorized immigration.

Judge Barker agreed with these points

Judge Barker said the administration’s use of “parole in place” to grant status to undocumented spouses went beyond what the law allowed.

He said the rule focused on the benefits of legal status rather than the immediate presence of these individuals in the U.S. which is outside the scope of parole authority.

  • Quote: “The Rule is not authorized by statute,” Judge Barker wrote, “the interpretation of ‘parole’ is beyond what Congress meant.”
  • Impact to Beneficiaries: Without this policy, undocumented spouses of U.S. citizens will now live in the U.S. without legal status, causing more fear and uncertainty for affected families.

Judge Barker’s Bio

Judge Barker was appointed to the Eastern District of Texas by Trump in 2018 and installed as a district judge in 2019.

He has a history of ruling against Biden administration immigration policies. In 2021 he issued an injunction against the 100-day deportation pause, siding with Texas’s argument that the pause would cost the state more.

In this ruling he said the administration didn’t have the authority to do a program of this size without congressional approval.

A Court Friendly to Conservatives: Judge Barker sits on the Eastern District of Texas, a court where conservative states often file challenges to federal policies. This court has been the venue for many cases that test the limits of executive authority on immigration

Bigger Picture

The ruling fits into a larger political landscape where Biden administration policies are being challenged and blocked.

Trump’s Immigration Position: Throughout his campaign Trump repeated anti-immigrant talking points and promised to go after undocumented individuals. His win has heightened the anxiety in immigrant communities about what’s to come

This ruling is especially concerning for families who are worried about what’s next as President-elect Donald Trump gets back into office. Trump who ran on stricter immigration enforcement and “deportation nation” has promised to do even more on immigration than he did his first time around.

Impact on Undocumented Immigrant Families

The end of the KFT program leaves hundreds of thousands of families in limbo. Without this program undocumented spouses will have to leave the U.S. to apply for legal status and face long periods of separation and uncertainty.

  • Separation: Families are now more fearful of separation as undocumented spouses have no path to residency without leaving the U.S. and potentially facing long re-entry bans.
  • Legal Pathways: Noncitizen spouses already have legal pathways but have to leave the country, a process that can take years and put families at risk of permanent separation.
  • DHS Statement: “Without this process hundreds of thousands of noncitizen spouses of U.S. citizens will instead remain in the United States without legal status, and these families will live in fear and uncertainty about their future,” DHS said in the June memo.

The ruling also highlights the complexities of relevant immigration law and the challenges faced by mixed-status families.

The ruling also shows the difficulties the Biden administration is having in doing immigration reform through executive action. Without legislative reform mixed-status families will continue to be at risk of separation and legal limbo.

This creates tremendous anxiety and stress for hundreds of thousands of families. Many are implementing steps to enhance their safety, and protect their children and assets.

Other Cases Challenging Federal Immigration Policies

This fits into a larger pattern of state-led challenges to federal immigration policies. Other big cases have shaped U.S. immigration policy and often tested federal authority and state economic interests. Here are some of them:

  • DACASince 2012 the DACA programhas been challenged in court by states, claiming economic harm. While DACA has survived so far, the cases have shown the importance of state standing in immigration cases.
  • Public Charge Rule (2019-2021): States challenged the Trump administration’s public charge rule, arguing it would cost the states more. This case showed how state cost arguments can sway immigration policy decisions.
  • Humanitarian Parole Programs: Parole programs for specific groups like Afghans and Ukrainians have also been challenged in court. Courts have generally upheld federal parole authority but challenges continue to come up.

What’s Next for the Biden Administration and the KFT Program

After Judge Barker’s ruling the administration will likely appeal. The case will go to the 5th U.S. Circuit Court of Appeals which handles Texas immigration cases and is quick to rule on them, usually within 3-6 months.

If the case gets to the Supreme Court it could take another 6-18 months for a final decision.

  • Appeal Timeline: The 5th Circuit could rule within months but if it gets to the Supreme Court it could be over a year.
  • Trump’s Election: With President-elect Trump coming in, the Biden administration’s immigration policies will be rolled back further. Trump has promised to be tougher on immigration, including more deportations and limits on temporary protected status.

The Immigration Reform Struggle Continues

The KFT program shows the difficulties the Biden administration has in doing immigration policy through executive action alone. Without congressional support KFT and other programs are vulnerable to legal challenges and political change.

Now immigrant families wait. And prepare. Read this Guide on Safety Planning for Immigrant Families.Top of Form

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USCIS Update on CSPA Age Calculation in Extraordinary Circumstances

Protecting Children From “Aging Out”

On 9/25/2024, USCIS issued new guidance on calculating ages under the Child Status Protection Act (CSPA) for noncitizens who will miss the “sought to acquire” requirements due to extraordinary circumstances.

This update explains the CSPA age determination when circumstances prevent applicants from meeting the original timeline for obtaining lawful permanent resident (LPR) status.

What is the CSPA

The CSPA was created to prevent certain child beneficiaries from “aging out” due to delays in the process. Under the Immigration and Nationality Act (INA) an unmarried person under 21 is considered a child. But children can lose eligibility if they turn 21 during the process.

The CSPA helps by determining and ‘freezing’ a child’s age at specific points, such as when a relevant immigration form is filed, allowing certain children under the age of 21 to retain their status.

For family-based, employment-based and diversity visa categories the CSPA provides a calculation to retain child status based on visa availability dates. Generally applicants must take steps to obtain LPR status within one year of a visa becoming available.

Background on “Sought to Acquire” and CSPA Age Calculation

The Child Status Protection Act (CSPA) prevents children of immigrants from “aging out” or losing eligibility because they turn 21 before their process is complete.

For immigration purposes, maintaining eligibility under the CSPA involves meeting the “sought to acquire” requirement within one year of visa availability by taking steps such as filing for adjustment of status or paying fees.

But the new guidance covers scenarios where extraordinary circumstances prevented those actions and allows applicants to keep their CSPA protected status under certain conditions.

What are “Extraordinary Circumstances”

Key Factors:

  • The applicant was unable to act within the 1-year timeframe due to circumstances beyond their control.
  • The circumstances directly impacted the delay in seeking LPR status.
  • The delay was reasonable given the circumstances.

Example Situations:

  • Serious illness or family emergencies that disrupted the applicant’s timeline.
  • Sudden changes in immigration law or guidance that complicated compliance.

When an applicant shows extraordinary circumstances USCIS may allow an adjusted CSPA age calculation based on the original visa availability date.

Visa Retrogression

Visa retrogression where the visa availability moves backward often limits when applicants can file for adjustment of status. When visas retrogress in a specific preference category, an applicant may lose access to a visa that was once available and can break the continuous 1-year timeframe required by the CSPA.

In those cases, USCIS allows a new 1-year period to start from the next time the visa becomes available. The applicant’s CSPA age will then be calculated based on that new visa availability date.

New Guidance

The new guidance covers scenarios where:

  • A visa was available for less than one year before it became unavailable.
  • Extraordinary circumstances prevented the applicant from seeking LPR status within that shorter period.

In those cases USCIS may:

  • Use the original visa availability date as the basis for the applicant’s CSPA age calculation if extraordinary circumstances are shown.

Additional Changes to USCIS Policy Manual:

  • Section Reorganization: The previous subsection on extraordinary circumstances (Section G, Subsection 3) has been renamed and updated as Section H which includes new guidance on how to calculate age when extraordinary circumstances apply.
  • New Subsections and Clarification: Section H has new content and more guidance on age calculation including what to do if you missed the original “sought to acquire” period due to extraordinary circumstances.

Applicants Will Benefit

This guidance brings clarity and consistency to CSPA age calculations in tricky situations so that:

  • Applicants with Extraordinary Circumstances: Noncitizen applicants who can show good reason for not meeting the “sought to acquire” requirement will have their CSPA age calculated based on the original visa availability date even if the visa becomes unavailable later.
  • Consistency: USCIS officers now have guidance on how to handle cases where the visa becomes unavailable and will treat applicants fairly and equally if they are affected by extraordinary circumstances.

Changes

USCIS Policy Manual, Volume 7, Part A, Chapter 7 now has:

  • New sections on CSPA calculations for extraordinary circumstances.
  • Improved organization to help you understand your options and requirements.

See the updated sections of the USCIS Policy Manual, Volume 7: Adjustment of Status for more information.

Child Status Protection Act (CSPA): Basics

The Child Status Protection Act (CSPA) was enacted to help noncitizen children who would “age out” of certain visa categories by turning 21. CSPA provides age calculation methods to protect qualifying children who would otherwise lose eligibility. This page explains CSPA’s purpose, scope and requirements.

1. Child Status Protection Act (CSPA) Purpose

CSPA is to prevent children from losing visa eligibility due to delays. A “child” under U.S. immigration law means an unmarried person under 21. CSPA does not change this definition but provides age calculation rules to help applicants qualify for a visa and remain a “child” even if they turn 21 while waiting. This is crucial for maintaining their eligibility for permanent residency under the CSPA.

2. CSPA Eligibility

CSPA applies to:

  • Immediate Relatives (IRs)
  • Family-based preferences and derivatives
  • VAWA (Violence Against Women Act) self-petitioners
  • Employment-based derivatives
  • Diversity Immigrant Visa (DV) derivatives
  • Derivative refugees and asylees

Each has its own CSPA rules.

3. Key Dates and CSPA Effective Date

CSPA became effective August 6, 2002. To qualify for CSPA, the underlying form or adjustment application must have been filed or pending on or after this date.

Special provisions:

  • USA PATRIOT Act Adjustment: For applications filed before September 11, 2001, applicants get an additional 45 days of CSPA.

4. How CSPA Age is Calculated

CSPA age calculation varies by category. Here’s how it works for each:

Immediate Relatives and VAWA Self-Petitioners

  • Age Freezes on Filing Date: Your age is frozen as of the date your Form I-130 or I-360 was filed. If you were under 21 when your petition was filed and remain unmarried, you are a “child” even if you turn 21 before your application is approved. This allows you to remain classified as a child for immigration purposes despite aging out.

Family and Employment-Based Preference & Diversity Visa

  • Pending Time Formula: Subtract the time a petition was pending from your age when a visa became available.
  • Formula: Age at Visa Availability – Pending Time = CSPA Age
  • Example: If you are 21 years and 4 months when a visa becomes available, and your petition was pending for 6 months, your CSPA age is 20 years and 10 months.

Derivative Refugees and Asylees

Age Freezes on Filing Date: For refugees, age freezes on the filing date of the Form I-590 (date of parent’s interview); for asylees, age freezes on the filing date of Form I-589. Derivative asylees must remain unmarried to qualify for CSPA under INA 209.

K-2 and K-4 Visa Holders

Limited CSPA Protection: CSPA does not cover K-2 and K-4 visas directly but K-2 and K-4 applicants can use CSPA if a U.S. citizen stepparent files a Form I-130 on their behalf before they turn 21.

5. “Sought to Acquire”

To benefit from CSPA as a family preference, employment preference or DV applicant, you must “seek to acquire” lawful permanent residence within 1 year of visa availability.

Ways to meet this requirement:

  • Filing Form I-485 (Application to Adjust Status)
  • Submitting Part I of Form DS-260 (Immigrant Visa Electronic Application)
  • Paying the immigrant visa fee or Form I-864 fee
  • Filing Form I-824 (Application for Action on an Approved Application or Petition)

Special Note: If you miss the 1-year deadline, USCIS may excuse this if you can show extraordinary circumstances beyond your control.

6. Exceptions and Extraordinary Circumstances

If you miss the “sought to acquire” 1-year deadline, you may still benefit from CSPA if you can show extraordinary circumstances that prevented timely filing, including:

  • Serious illness of the applicant or immediate family.
  • Legal disability, such as a mental impairment.
  • Ineffective assistance from legal counsel.

These must be beyond the applicant’s control and justify the delay.

7. Special Cases and Examples

  1. Visa Becomes Temporarily Unavailable: If a visa becomes unavailable before an applicant files, CSPA age calculation resets when the visa becomes available again.
  2. Changes in Priority: If USCIS changes the criteria, applicants get a new chance to meet CSPA requirements based on the new visa availability dates.
  3. Example: A visa becomes available in October but only for 3 months. It becomes available again in July. If the applicant files within 1 year of July, their CSPA age will be based on the new availability date unless they can show extraordinary circumstances for missing the first 3 months.

Changes Due to Petitioner’s Naturalization

If a lawful permanent resident (LPR) petitions a child and the LPR becomes a U.S. citizen, the petition’s classification changes.

Here’s what you need to know:

LPR Parent’s Child Becomes Immediate Relative:

If an LPR parent becomes a U.S. citizen before the child turns 21, the child’s age is frozen at that date and they can qualify as an immediate relative without aging out.

Opting Out of Automatic Conversion:

If an unmarried son or daughter of an LPR (F2B category) wants to stay in F2B instead of switching to F1 (unmarried son or daughter of a U.S. citizen), they can opt out if the wait times are shorter. A signed letter with personal details should be sent to the USCIS office that approved the petition.

Application Process and Requirements

Navigating the application process for the Child Status Protection Act (CSPA) involves several critical steps and requirements. To qualify for CSPA benefits, applicants must be derivative beneficiaries of family-based or employment-based immigrant visa petitions, or derivative refugees or asylees.

Additionally, they must have a pending or approved immigrant visa petition and be actively seeking to adjust status to lawful permanent resident.

To initiate the process, applicants need to submit Form I-485, Application to Register Permanent Residence or Adjust Status, along with the required filing fee.

Supporting documentation, such as a copy of the applicant’s birth certificate, passport, and the immigrant visa petition, must also be provided to substantiate the application.

A crucial aspect of the application is demonstrating that the applicant has sought to acquire lawful permanent resident status within one year of their priority date becoming current.

This can be achieved by filing an adjustment of status application or submitting a written request to transfer the underlying basis of the adjustment of status application.

Meeting this requirement is essential to securing CSPA benefits and ensuring the applicant’s age is calculated favorably under the act.

Evaluating Extraordinary Circumstances

In certain situations, applicants may face challenges that prevent them from meeting the sought to acquire requirement within the stipulated timeframe.

These extraordinary circumstances can include serious illness, natural disasters, or legal errors that hinder the applicant’s ability to take the necessary steps towards seeking lawful permanent resident status.

USCIS evaluates claims of extraordinary circumstances on a case-by-case basis, considering the specific facts and context of each situation.

Applicants must provide comprehensive documentation to support their claims, such as medical records, evidence of natural disasters, or proof of legal errors.

If USCIS determines that the applicant’s failure to meet the sought to acquire requirement was due to extraordinary circumstances, the applicant may still be eligible for CSPA benefits.

In such cases, the applicant’s CSPA age will be calculated based on the original visa availability date, rather than the date the visa became available after the extraordinary circumstances had passed. This adjustment ensures that applicants are not unfairly penalized for delays beyond their control.

USCIS February 2023 CSPA Update: What You Need to Know

In February 2023, USCIS released major updates to its CSPA guidance and how age is calculated for noncitizen children seeking to adjust status. The announcement clarifies when a visa “becomes available”, a key point in CSPA eligibility.

This is a big step in helping applicants who are at risk of “aging out” due to long processing times. Here’s the breakdown, what’s changed and who’s affected.

February 2023 Policy Update Highlights

In February 2023, USCIS updated its Policy Manual to redefine when an immigrant visa is considered “available” for CSPA age calculations. The update clarifies eligibility criteria and expands the law to help more applicants avoid aging out.

Key changes include:

  1. New Visa Availability for CSPA Calculations
    • Previously, USCIS used the Final Action Dates chart in the Department of State’s Visa Bulletin to determine visa availability. Now, USCIS uses the Dates for Filing chart to establish visa availability. This means applicants can lock in their age sooner using the filing chart instead of waiting for the final action date.
    • This will help applicants in categories with long wait times to qualify for CSPA.
  2. Expanded Eligibility for Motions to Reopen
    • Applicants whose cases were denied because they aged out under the old interpretation of visa availability can now reopen their case. If an applicant thinks their CSPA age would qualify under the new guidance, they can file a motion to reopen using Form I-290B, Notice of Appeal or Motion.
    • File the motion within 30 days of the decision, but USCIS may accept late motions if the applicant can show that the delay was reasonable and beyond their control.
  3. Effective Date and Applicability
    • The policy is effective February 14, 2023 and applies to all adjustment of status applications adjudicated on or after that date. It’s also retroactive to those who filed applications before February 14, 2023 if they meet the new criteria.

Impact

These changes affect individuals in preference categories (family-based and employment-based) who are at risk of aging out. By using the Dates for Filing chart for age calculations, USCIS is allowing more applicants to qualify under CSPA. This is especially good for applicants in high demand categories from countries with big backlogs like Mexico, India and the Philippines.

Example

An applicant is a dependent child on their parent’s family-sponsored visa application. Under the old policy, the child would only lock in their CSPA age when the visa was current according to the Final Action Dates chart which could be years after the Dates for Filing chart.

Now, using the Dates for Filing chart, the applicant can calculate their CSPA age based on an earlier date and potentially qualify to remain a child even if they turn 21 before the Final Action Date is current.

How to Qualify for CSPA Under the New Rules

To qualify for CSPA under the new rules, follow these steps:

  1. Check CSPA Eligibility: Applicant must be in a covered category (e.g. family preference, employment-based preference, diversity visa derivative). Principal applicant must have filed a Form I-130, I-140, I-360 or other eligible form with USCIS.
  2. Calculate CSPA Age Using Dates for Filing Chart: Calculate the applicant’s age by taking the applicant’s actual age on the date the visa becomes available (based on the Dates for Filing chart) and subtract the petition’s pending time.
  3. Sought to Acquire Requirement: After eligibility is established, applicants in preference categories must show they sought to acquire LPR status within one year of visa availability. This can be done by filing Form I-485 or paying the immigrant visa fee.

Steps to Reopen Previously Denied Cases

For those whose cases were denied because they aged out, the new guidance offers an opportunity to reopen the case based on the new CSPA interpretation. Here’s how to do it:

  1. File Form I-290B: File a Notice of Appeal or Motion (Form I-290B) to reopen the case. Provide evidence of how the new CSPA policy would affect the age calculation and establish that the applicant qualifies under the new guidance.
  2. Explain Delays (if Any): If filed more than 30 days after the original decision, explain the reason for the delay and any extraordinary circumstances beyond the applicant’s control.
  3. Pay Fees: The motion requires a fee unless the applicant qualifies for a fee waiver. Check the USCIS Filing Fees page to see the current fee.

More Resources and Links

  • For Refugees: INA 207(c)(2)(B)
  • For Asylees: INA 208(b)(3)(B)
  • General CSPA Guidance: USCIS Policy Manual, Volume 7, Part A, Chapter 7

For more information on K-1, K-2 and K-4 visa processing, see the Fiancé(e) Visas and Green Card for Fiancé(e) of U.S. Citizen pages on the USCIS website.

Summary Checklist

Make sure you understand your eligibility and CSPA protection by:

  • Category-specific rules: CSPA rules and age calculations vary by category.
  • Meeting the sought-to-acquire requirement: File promptly or document any extraordinary circumstances.
  • Tracking your petition status: Age calculations depend on pending times and filing dates.
  • Naturalization impacts: If your petitioner naturalizes, see if this helps your CSPA status.

The CSPA is a tool to protect age eligibility allowing certain applicants to stay in child status beyond their 21st birthday.

The Child Status Protection Act (CSPA) is a vital piece of legislation that offers significant protections for young individuals seeking to immigrate to the United States.

Understanding the application process and requirements, as well as the criteria for evaluating extraordinary circumstances, is crucial for navigating the CSPA process and securing its benefits.

Given the complexity of the CSPA and the broader US immigration system, it is highly recommended that applicants seek the guidance of an experienced immigration attorney. Professional legal advice can help ensure eligibility for CSPA benefits and provide support throughout the application process.

Additionally, staying informed about changes to the CSPA and other immigration laws and policies is essential for maintaining eligibility and maximizing immigration benefits.

FAQs

CSPA is age-out protection for certain applicants, an alternative age calculation to keep children eligible for immigrant visas or green cards despite the delay. Know the CSPA requirements, eligibility and calculations to make sure all qualifying children can benefit from this law.

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USCIS Issues New Guidance on the International Entrepreneur Rule

Increase in Funding Levels

On October 10, 2024, U.S. Citizenship and Immigration Services (USCIS) released updated guidance for the International Entrepreneur Rule (IER).

This Policy Manual update clarifies changes to the financial requirements for qualifying entrepreneurs, specifically investment levels, revenue thresholds, average annualized revenue growth, and other criteria.

IER Is Not Popular

The program is not popular at all. Historical data shows an average of 19 Form I-941 applications filed annually from FY 2018-2023. The increase in minimum investment levels will not likely result in more applications being filed.

2024 Financial Criteria

To keep up with inflation, USCIS has updated the minimum capital investment and revenue levels as of October 1, 2024. These will be updated every 3 years.

The updated financial criteria are designed to ensure that only startups with substantial potential for growth and job creation qualify, emphasizing the importance of demonstrating a startup entity’s substantial potential through considerable investment from qualified U.S. investors and relevant government awards.

Initial Parole Application Criteria

To qualify for initial parole, an entrepreneur must meet the updated investment or grant requirements. For Fiscal Year 2025 (beginning October 1, 2024):

  1. Qualified Investments: Entrepreneurs must show their start-up received at least $311,071 (up from $264,147) from one or more qualified investors within 18 months prior to application.
  2. Government Awards or Grants: Or an entrepreneur may qualify if the start-up received at least $124,429 (up from $105,659) in government funding within the same period.

If these thresholds are not met, applicants can still qualify by providing strong evidence of their startup entity’s substantial potential for growth and job creation.

Re-Parole Criteria for Continuing Entrepreneurs

For re-parole, entrepreneurs must show that during their initial parole period, the business entity or start-up achieved one or more of the following:

  1. Additional Funding: Received at least $622,142 (up from $528,293) in qualified investments, government grants or a combination.
  2. Job Creation: Created at least 5 U.S.-based jobs.
  3. Revenue Growth: Generated at least $622,142 in annual revenue and demonstrated an average annualized revenue growth of 20%.

Like the initial parole, entrepreneurs can still qualify for re-parole by providing additional evidence of the start-up’s impact on U.S. growth if they only meet some of these criteria.

Qualified Investor Standards:

Investors must have invested $746,571 or more in start-ups over the past 5 years, with those start-ups creating significant job creation or revenue growth

Triennial Adjustments

Every 3 years, USCIS will update the investment and revenue levels to reflect current economic data. This will impact the criteria for initial application and subsequent renewals.

Biometrics and Identity Verification for International Entrepreneur

Biometrics (fingerprints and photo) are required for all applicants, including family members. Collection locations vary based on the address entered in the application:

  • Inside the U.S.: Appointments are scheduled at USCIS Application Support Centers.
  • Outside the U.S.: USCIS will coordinate with U.S. embassies or consulates to schedule biometrics appointments.

Applicants approved conditionally under the IER and living outside the U.S. will benefit from USCIS and U.S. Department of State coordination for their biometrics appointments.

This includes:

  • U.S. Embassy and Consulate Appointments
    Entrepreneurs can choose to do biometrics at a U.S. embassy or consulate if they want to receive their parole documents at one of these locations.
  • Biometric Support Expansion
    This expanded support will help international applicants to comply with U.S. entry requirements more easily

Effective Dates

October 1, 2024, new investment, revenue and funding requirements will apply to IER applications. Noncitizen entrepreneurs and their spouses and children should follow these guidelines to be compliant with the new standards.

For more information, see the Policy Alert PDF on USCIS’s website.

Demonstrating Significant Public Benefit

To demonstrate significant public benefit, entrepreneurs must show that their startup entity has the potential to create jobs, stimulate economic growth, and contribute to the overall well-being of the United States. This can be achieved by providing evidence of the startup’s potential for rapid growth and job creation, as well as its potential to make a significant impact on the U.S. economy.

Entrepreneurs can demonstrate significant public benefit by providing documentation such as:

  • A business plan that outlines the startup’s goals, objectives, and strategies for growth and job creation.
  • Financial statements that show the startup’s potential for revenue growth and job creation.
  • Letters of support from local government entities, investors, or other stakeholders that demonstrate the startup’s potential for public benefit.
  • Evidence of the entrepreneur’s central and active role in the startup, such as a resume or a letter from the startup’s board of directors.

By providing this documentation, entrepreneurs can demonstrate that their startup entity has the potential to make a significant contribution to the U.S. economy and create jobs for U.S. workers.

Job Creation and Economic Growth

The International Entrepreneur Rule is designed to attract foreign entrepreneurs who can create jobs and stimulate economic growth in the United States. To be eligible for the program, entrepreneurs must demonstrate that their startup entity has the potential for rapid growth and job creation.

Entrepreneurs can demonstrate job creation and economic growth by providing evidence of the startup’s potential for revenue growth, job creation, and innovation. This can include:

  • Financial statements that show the startup’s potential for revenue growth and job creation.
  • A business plan that outlines the startup’s goals, objectives, and strategies for growth and job creation.
  • Letters of support from local government entities, investors, or other stakeholders that demonstrate the startup’s potential for job creation and economic growth.
  • Evidence of the entrepreneur’s central and active role in the startup, such as a resume or a letter from the startup’s board of directors.

By providing this documentation, entrepreneurs can demonstrate that their startup entity has the potential to create jobs and stimulate economic growth in the United States.

International Entrepreneur Rule (IER) Overview

The International Entrepreneur Parole Program was introduced on January 17, 2017, allowing DHS to parole on a case-by-case basis foreign entrepreneurs of start-ups that can demonstrate a very significant investment and public benefit to the United States. The program aims to drive economic growth, job creation and innovation through high-growth start-ups. Key changes to the program include automatic adjustments to the investment and revenue criteria to reflect inflation and economic changes.

The International Entrepreneur Rule allows noncitizen entrepreneurs to bring their start-ups to the U.S. if they show significant potential for growth and job creation. Through a temporary status called “parole” immigrant entrepreneurs can grow their business while benefiting the U.S. economy.

  • Parole Duration: Initial parole for up to 2.5 years with option to apply for 2.5 year extension (max 5 years).
  • Eligible Entrepreneurs: Up to 3 founders per start-up can qualify.
  • Eligible Family Members: Spouses can apply for work authorization after arrival; minor children can accompany the entrepreneur but not work. Spouses can apply for an employment authorization document through Form I-765 after arrival.

Many questions arise for all dual citizens in the nation. Here are some helpful answers to all these frequently asked questions considering real-world issues.

Eligibility Requirements for Entrepreneurs

Entrepreneurs must meet key requirements for the following to qualify under the International Entrepreneur Rule:

  • Ownership: Must own at least 10% of the start-up at the time of initial application and 5% for re-parole.
  • Role: Must be actively involved in the start-up.
  • Start-Up Criteria:
  • Formed in the U.S. within the last 5 years.
  • Has significant growth and job creation potential.
  • Funding and Investment Evidence:
  • $311,071 from a qualified investor or $124,429 government grant or award.
  • If not met, alternative evidence of start-up growth potential can be submitted.

Definitions of Qualified Investments and Investors

The rule states that to be considered a qualified investor, an individual or entity must:

  1. Invest at least $746,571 in start-ups over 5 years.
  2. Have at least 2 of the invested start-ups create 5 jobs or generate $622,142 in revenue with at least 20% annual growth.

How to Apply for Entrepreneur Parole: Process & Documents

  1. Form I-941: Submit Form I-941, Application for Entrepreneur Parole, with fees and supporting documents.
  2. Travel Documentation:
    • Entrepreneurs outside the U.S. will need to do final processing at a U.S. embassy or consulate.
    • Parolees in the U.S. will receive documents by mail but may need to exit and re-enter for a final parole decision.

Spouses and Children

Family Members:

  • Spouses and children (under 21) can file Form I-131 to apply.
  • Employment for Spouses: Spouses must file Form I-765 for an employment authorization document after arriving in the U.S. under parole. This document allows them to work legally in the U.S. Children are not eligible to work.

Travel and Adjustment of Status

Entrepreneurs who are granted parole under the International Entrepreneur Rule are authorized to enter the United States for an initial parole period of up to 30 months. During this time, they are allowed to work only for the startup entity and are not eligible for employment authorization.

If an entrepreneur wishes to travel outside of the United States during their parole period, they must apply for advance parole. Advance parole is a document that allows an entrepreneur to re-enter the United States after traveling abroad.

To apply for advance parole, entrepreneurs must submit Form I-131, Application for Travel Document, to U.S. Citizenship and Immigration Services (USCIS). The application must include documentation such as a copy of the entrepreneur’s parole authorization, a copy of their passport, and evidence of their central and active role in the startup entity.

Entrepreneurs who are granted parole under the International Entrepreneur Rule are not eligible to adjust their status to a lawful permanent resident (green card) while in the United States. However, they may be eligible to apply for a different visa status, such as an H-1B or L-1 visa, if they meet the eligibility requirements for that visa.

It’s important to note that entrepreneurs who are granted parole under the International Entrepreneur Rule are not considered to be in a lawful permanent resident status, and therefore are not eligible for certain benefits, such as employment authorization for their spouses or children.

FAQ

Final Steps for Entrepreneurs

Processing Tips

To avoid delays, make sure your contact information is up to date (U.S. address, phone number and email) so you receive biometrics and travel documents notices on time.

  1. Stay Current: USCIS updates the thresholds and requirements every 3 years; check the website for the latest information.
  2. File Correctly: Send applications and any subsequent forms to the USCIS

Dallas Lockbox Facility:

For USPS:

  • USCIS
  • Attn: IER
  • PO Box 650890
  • Dallas, TX 75265

For FedEx, UPS, or DHL:

  • USCIS
  • Attn: IER (Box 650890)
  • 2501 S. State Highway 121 Business, Suite 400
  • Lewisville, TX 75067

Application Checklist: Make sure all supporting evidence, including proof of qualified investment amount, government grants, ownership documents and biometrics is complete and accurate. Missing documents can result in delays or denials.

More Resources

This guidance is designed to help international entrepreneurs take advantage of the U.S. market while meeting all necessary immigration requirements for launching and growing a U.S.-based start-up.For more information and updates on the International Entrepreneur Rule, entrepreneurs should visit:

Options for Noncitizen Entrepreneurs for long-term visa pathways after parole.On October 10, 2024, U.S. Citizenship and Immigration Services (USCIS) released updated guidance for the International Entrepreneur Rule (IER). This Policy Manual update clarifies changes to the financial requirements for qualifying entrepreneurs, specifically investment levels, revenue thresholds and other criteria.

USCIS Policy Manual for the latest policies.

USICS page on International Entrepreneur Parole

Form I-941 Information Page for application instructions and forms.

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DHS Announces TPS Lebanon and DED for Lebanese Nationals in the U.S.

New Protections

On October 17, 2024, the Department of Homeland Security (DHS) has designated Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) for Lebanese nationals currently in the United States.

These programs will provide temporary relief from deportation and allow eligible individuals to work legally while Lebanon is going through crises, with details related to the new TPS and DED designations highlighting the eligibility criteria and benefits for those affected by the ongoing humanitarian crisis in Lebanon.

Why TPS and DED for Lebanese Nationals?

Lebanon is going through tough times due to an ongoing armed conflict and political instability, making it unsafe for many citizens to go back. DHS has responded to this humanitarian crisis by designating Lebanon for TPS for 18 months. DED was also granted to Lebanese nationals through an executive order by President Biden, until January 25, 2026.

What is Temporary Protected Status (TPS)?

TPS is a temporary immigration benefit for nationals of designated countries going through extraordinary circumstances. Eligible Lebanese nationals, who have been continuously residing in the U.S. since a specified date, can apply for these protections.

Under TPS, beneficiaries:

  • Are protected from deportation during the TPS designation period.
  • Can apply for work authorization (Employment Authorization Document or EAD).
  • Can apply for travel authorization to leave and re-enter the U.S.

What is Deferred Enforced Departure (DED)?

DED is similar to TPS but is granted by executive order rather than statute.

  • DED can be terminated by the President at any time.
  • Lebanese nationals under DED can apply for work authorization but don’t need to file a DED application.
  • DED for Lebanese nationals is currently set to expire on January 25, 2026 unless extended.

Main Components of Protection

These will give Lebanese nationals a break from removal, TPS and employment authorization, and the ability to work legally in the U.S. while Lebanon is going through conflict and severe humanitarian crisis.

Here’s what’s available:

1. Temporary Protected Status (TPS) for Lebanon

Duration and Reason for TPS: DHS, under Secretary Mayorkas, has designated Lebanon for TPS for 18 months due to the war and temporary conditions that make it not safe for Lebanese nationals to go back.

Eligibility:

  • Lebanese nationals (or those without nationality who last habitually resided in Lebanon) who have been physically present in the U.S. since October 16, 2024 are eligible to apply for TPS. This means that Lebanese nationals who have been physically present in the U.S. since this date can apply for TPS.
  • Lebanese nationals who arrived in the U.S. after October 16, 2024 are not eligible.

Application Information: A Federal Register Notice will be published soon with the application process for TPS, including employment authorization. Until then, do not submit applications for TPS under this designation.

2. Deferred Enforced Departure (DED) for Lebanese Nationals

  • Background of DED Designation: In July 2024, President Biden granted DED for Lebanese nationals, which allows eligible individuals to stay in the U.S. temporarily and apply for work authorization.
  • Employment Authorization: Lebanese nationals under DED can apply for an Employment Authorization Document (EAD) until January 25, 2026 by filing Form I-765 (Application for Employment Authorization). Each application will be reviewed individually by U.S. Citizenship and Immigration Services (USCIS) to determine eligibility. Eligible individuals must request employment authorization as part of this process and await official guidelines before applying.
  • How to Apply: More information on DED-based EAD applications can be found on the USCIS website including documentation and process steps.

Special Support for Lebanese F-1 Students: Special Student Relief (SSR)

For F-1 nonimmigrant students from Lebanon, DHS is offering Special Student Relief (SSR) through a special student relief notice. This will allow eligible students to:

  • Employment Authorization: Work more hours than usual while maintaining F-1 student status.
  • Increased Work Hours and Reduced Course Load: Work more hours while school is in session and reduce academic course load.
  • F-1 Status Flexibility: Lebanese students will be able to maintain F-1 status with these modifications throughout the DED designation period which is until January 25, 2026.

Eligibility for SSR

  • This SSR is for Lebanese nationals or those without nationality who last habitually resided in Lebanon and are currently in F-1 student visa program.
  • Students should check the DHS website for more information on eligibility and process.

Affected Populations

Through these measures, DHS estimates:

  • DED and TPS Eligibility: 11,000 Lebanese nationals will be eligible for DED or TPS, a temporary safe haven from removal.
  • F-1 Student Relief: 1,740 Lebanese F-1 students will be eligible for SSR, so they can continue to study with more flexibility and financial options.

Upcoming Dates and Next Steps

  • Federal Register Notices: DHS will publish notices on the application process for TPS and DED and SSR in the coming weeks.
  • Application Preparation: Lebanese nationals who want to apply for TPS or DED-based work authorization should check eligibility on the USCIS website and wait for the notice before submitting application.

How to Apply for Work Authorization

Lebanese nationals under TPS and DED can apply for employment authorization documents (EAD) to work in the U.S.

  • For TPS Applicants: File Form I-821 (Application for TPS) and Form I-765 (Application for Employment Authorization). See Federal Register Notice.
  • For DED Applicants: File Form I-765 with code “A11” in question 27. EAD will be valid until January 25, 2026.

Application Fees and Fee Waivers

TPS and DED application fees are:

  • Form I-821 (TPS): $50 (new applicants) + $30 biometrics fee.
  • Form I-765 (TPS EAD): $470 (online) or $520 (paper).
  • Form I-765 (DED EAD): $520 (no fee waiver available for DED applications).
  • Form I-131 (Travel Authorization): $630.

Fee Waiver: Applicants who cannot pay the fees can submit Form I-912 with their application, but not for DED-based Form I-765 applications

What Happens After TPS or DED Expires?

Once TPS or DED status expires, individuals who do not get another status will start accruing unlawful presence in the U.S. But as long as they are under TPS or DED protection, they will not accrue unlawful presence.

TPS and DED are relief, but they are not a path to permanent residency or citizenship. Beneficiaries should consult with an immigration attorney or accredited representative to explore long term options.

Advice For Lebanese Nationals

  • Act Fast: Lebanese nationals should start preparing for the application process when the Federal Register Notice is published.
  • Get Documents: Collect the necessary documents to prove eligibility, such as proof of continuous residence in the U.S. and ID.
  • Seek Legal Advice: Since TPS and DED are not a path to permanent status, consult with an immigration attorney to explore other options.

Thousands of Lebanese nationals will be able to stay safely in the U.S. while Lebanon is unstable. DHS’s announcement is a lifeline, providing work and relief for those affected by the crisis.

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