Your Suggestions for Murthy Law Firm's Comments on Proposed Rule for Changes Affecting EB1, EB2, & EB3

[rahul412]

But that doesn't answer my queries.

1. What is the difference between work authorization and employment authorization?

2. EAD is not a status, we all know that. How did DHS came up with the rule to provide work authorization for I140 beneficiaries without clarifying on what status these beneficiaries will be in once their work authorization is approved?

3. Why there is a mention of AP for individuals with a pending LPR application, in the fact sheet? What is the need of AP when you have a non-immigrant status?

 

If you say that providing EAD is  not possible as per the law then "is DHS and POTUS making false promises to the immigration communities?".

[Attorney_23]

But that doesn't answer my queries.

1. What is the difference between work authorization and employment authorization?

2. EAD is not a status, we all know that. How did DHS came up with the rule to provide work authorization for I140 beneficiaries without clarifying on what status these beneficiaries will be in once their work authorization is approved?

3. Why there is a mention of AP for individuals with a pending LPR application, in the fact sheet? What is the need of AP when you have a non-immigrant status?

 

If you say that providing EAD is  not possible as per the law then "is DHS and POTUS making false promises to the immigration communities?".

 

1. I don't believe there is any difference between 'work authorization' and 'employment authorization'. But, there is a big difference between employment authorization and an Employment Authorization Document (EAD). If you are in H1B status, you are work authorized. But, you lack the freedom and flexibility granted by an EAD (in most situations.)

 

The White House proposal indicated that they wanted to provide "portable work authorization for high-skilled workers awaiting LPR status and their spouses." Many interpreted this to mean a broad I-140 EAD rule would be enacted. But, that was never actually promised by the administration. Consider this:

 

By allowing for the I-140 to remain valid once it's been pending for at least 180 days, this helps provide portable work authorization for many foreign nationals. Now, when a person moves from Company A to Company B, if the person's H1B time is running out (or already past the 6-year mark), s/he can still use that I-140 extend in 3 year increments. And, the H-4 spouse can still use the I-140 to apply for EADs.

 

I am NOT saying this is a satisfactory way to address this problem. I'm only pointing out that it does at least slightly improve this issue. And, to be fair, I've had many clients where this would have made an enormous difference. So, it is a positive development for some. In fact, for those individuals, the new rule provides "portable work authorization for high-skilled workers awaiting LPR status and their spouses." But, again, for the vast majority of people, it means next-to-nothing.

 

 

2. The DHS does clarify the status issue. Per the proposed reg, "...nonimmigrant workers will have significant incentive to choose other options, as the proposal discussed in this section would require the worker to relinquish his or her nonimmigrant status, thus restricting his or her ability to change nonimmigrant status or adjust status to that of a lawful permanent resident. Accepting the employment authorization under this proposal, for example, would generally require the worker to forego adjusting status in the United States and instead seek an immigrant visa abroad through consular processing."

 

Yes, this is ridiculous. It puts the worker in a terrible situation. But, as I said, the ability to resolve the status issue without a new law being passed is no easy task.

 

3. As I noted in #2, the person would not be in status. So, if travel authorization would be granted under the I-140 EAD rule, AP would be the natural solution.

 

Again, I want to emphasize that the Murthy Law Firm will be supporting an I-140 EAD rule - one that is broadly available, rather than the highly restrictive version provided for in the proposal. But, even if the DHS and the President decided that they wanted to offer this benefit, they may well have concluded that this just is not feasible without help from Congress. So, we should not be focusing on this possible change to the exclusion of other ways to make huge improvements to the employment-based immigration system. (e.g. The 'one immigrant visa per family' change I discussed previously.)

[rahul412]

 But, again, for the vast majority of people, it means next-to-nothing.

So it took one freaking year to write a rule that benefits less than 1% of the immigrants.

 

 

Yes, this is ridiculous. It puts the worker in a terrible situation. But, as I said, the ability to resolve the status issue without a new law being passed is no easy task.

Hence proved, they screwed us without thinking about what will be the circumstances if implemented. So the bottom-line is that, DHS/USCIS is not willing to help GC backlogged immigrants and not even a single law firm raised their voice against this bullshit rule.

 

 

 

So, we should not be focusing on this possible change to the exclusion of other ways to make huge improvements to the employment-based immigration system. (e.g. The 'one immigrant visa per family' change I discussed previously.)

 Got it, this wont' be implemented.

 

So in other words, no one is getting any work authorization or travel document. Even if a person moves to another job as per this useless rule, he/she still can't take promotions or setup his own startup. So in what way this is helpful?

[Attorney_23]

 

Hence proved, they screwed us without thinking about what will be the circumstances if implemented. So the bottom-line is that, DHS/USCIS is not willing to help GC backlogged immigrants and not even a single law firm raised their voice against this rule.

 

 

We ARE raising our voice against this rule. We learned the specifics of the I-140 EAD rule through the Federal Register, just like everyone else. (And any information we had about the rule before it was published was posted on MurthyDotCom immediately.)

 

The public comments period is the first opportunity we have been granted to voice our opposition to this proposed rule. We are in the process of drafting comments; and, in the comments, we will be asking for a broad I-140 EAD rule. But, again, there are major hurdles to this because of the status issue. That's why we are also going to be asking for other benefits, as well.

[rahul412]

 

The public comments period is the first opportunity we have been granted to voice our opposition to this proposed rule. We are in the process of drafting comments; and, in the comments, we will be asking for a broad I-140 EAD rule. But, again, there are major hurdles to this because of the status issue. That's why we are also going to be asking for other benefits, as well.

Thanks, and I hope all the firms will do the same.

[Softdev]

attorney 23,

 

Almost all the major issues will be resolved, if they let I-140 approved candidates to file I-485, EAD and AP. That was achieved by having a date of filing date in visa bulletin. But this date of filing is not moving and is practically useless now. Will murthy law firm take this up and raise that concern ? What is preventing date of filing from moving ? why cant they make it current for EB2 and EB3 categaries or near current say....2012...If we can get it...we dont need this new rule at all...all the issues will be addressed by users able to file EAD and AP .........

[Attorney_23]

attorney 23,

 

Almost all the major issues will be resolved, if they let I-140 approved candidates to file I-485, EAD and AP. That was achieved by having a date of filing date in visa bulletin. But this date of filing is not moving and is practically useless now. Will murthy law firm take this up and raise that concern ? What is preventing date of filing from moving ? why cant they make it current for EB2 and EB3 categaries or near current say....2012...If we can get it...we dont need this new rule at all...all the issues will be addressed by users able to file EAD and AP .........

 

We actually requested something nearly identical to this in January 2015:

 

"The most important policy and operational changes for adjustment of status are to allow people to file their I-485 applications even when the priority date is not current."

 

Realistically, however, this also would likely require Congressional action. Keep in mind - the actions that can be taken by the President without the support of Congress is limited.

 

[sarran]

My other suggestion is, "once the rule becomes active, the rule should support past "employer changes/switches" 

 

I mean  "If any employee changed to a new employer and the previous employer revoked the I140 before the proposed rule comes into action. The employee should retain the priority date once the rule is in force" 

[Attorney_23]

My other suggestion is, "once the rule becomes active, the rule should support past "employer changes/switches" 

 

I mean  "If any employee changed to a new employer and the previous employer revoked the I140 before the proposed rule comes into action. The employee should retain the priority date once the rule is in force" 

 

Excellent suggestion.

[nvedia]

If DHS has authority to grant EAD, then why it wont grant it in this case of approved I140 ?

Can you please explain ? 

 

 

 DHS has authorization under 274A(h)(3) to issue EADs to anyone. Please refer to this code that since DHS used the authority under this code to issue EADs to DACA recipients, H4 visa holders as well as looking to issue 5 million EADs to DAPA recipients, why cannot USCIS use the same code to issue EADs to H1B applicants with approved I-140s? No "compelling circumstance" was required in any of the other cases, why is it required now? Please ask USCIS to remove "compelling circumstance".

 

[Attorney_23]

If DHS has authority to grant EAD, then why it wont grant it in this case of approved I140 ?

Can you please explain ? 

 

Please see above. The problem is that this doesn't provide status.

[rahul412]

Please see above. The problem is that this doesn't provide status.

how about creating a new status?

[Attorney_23]

how about creating a new status?

 

That would almost certainly require Congress to pass a new law, as well. But, again, there are some major fixes that could be made just by regulation. There just has to be the political will to do it.

[rahul412]

That would almost certainly require Congress to pass a new law, as well. But, again, there are some major fixes that could be made just by regulation. There just has to be the political will to do it.

Then how did undocumented aliens became eligible for EAD?

[Attorney_23]

Then how did undocumented aliens became eligible for EAD?

 

An EAD is not status. If a person is granted an EAD, this does not give the individual permission to remain in the United States. By regulation, the DHS created the H-4 EAD program last year. Similarly, regulation was used to allow for EADs under DACA (i.e. for certain foreign nationals who are in the U.S. without lawful status.) The ability of the President (through the DHS) to grant EADs is a bit of a gray area, as evidenced by the fact that these programs are being challenged in federal court. But, putting that aside, these programs are granting employment authorization, not status.

 

If a program were enacted that would allow any I-140 beneficiary to obtain an EAD, this does not address the question of how the person would be permitted to remain in the U.S. For the H-4 EAD program, this is solved by the fact that the person remains in H-4 status. For DACA, this is 'solved' only to the extent that the government agrees to not remove (i.e. deport) the person temporarily. So, for your average H1B worker who wishes to convert to an EAD, under current rules, the person would not be permitted to adjust from within the U.S. (i.e. File an I-485).

 

Briefly, I can say that getting an I-140 EAD program that would also fix the status issue may be very difficult to do without Congress passing a new law through Congress.

[rahul412]

Similarly, regulation was used to allow for EADs under DACA (i.e. for certain foreign nationals who are in the U.S. without lawful status.) The ability of the President (through the DHS) to grant EADs is a bit of a gray area, as evidenced by the fact that these programs are being challenged in federal court. But, putting that aside, these programs are granting employment authorization, not status.

So providing EAD's for DACA was against the rules, Am I right?

[rahul412]

And based on what status these people will get their EAD's,if in case a person is eligible?

[Attorney_23]

So providing EAD's for DACA was against the rules, Am I right?

Again, that's a grey area being litigated in the courts. But, that's not the problem here. The EAD does NOT grant status. Those who get an EAD through DACA are still out of status.

 

The government does not even attempt to claim that DACA provides them lawful status. To the contrary, under DACA, the only reason a beneficiary is able to stay in the U.S. is because the government has decided to delay deporting that person. DACA stands for "Deferred Action for Childhood Arrivals". By 'Deferred Action', the government means they are delaying taking 'action' against you. And, by "action" they mean "deportation."

[rahul412]

Again, that's a grey area being litigated in the courts. But, that's not the problem here. The EAD does NOT grant status. Those who get an EAD through DACA are still out of status.

 

The government does not even attempt to claim that DACA provides them lawful status. To the contrary, under DACA, the only reason a beneficiary is able to stay in the U.S. is because the government has decided to delay deporting that person. DACA stands for "Deferred Action for Childhood Arrivals". By 'Deferred Action', the government means they are delaying taking 'action' against you. And, by "action" they mean "deportation."

So people who breaks the law gets more freedom when compared with people who follow the law? Why didn't any law firm raised their voice against this action and calling it unconstitutional when this was implemented?Didn't it thought to your brain that this gives more freedom to lawbreakers than to the law abiding immigrants?

[nvedia]

So people who breaks the law gets more freedom when compared with people who follow the law? Why didn't any law firm raised their voice against this action and calling it unconstitutional when this was implemented?Didn't it thought to your brain that this gives more freedom to lawbreakers than to the law abiding immigrants?

Yes, most would see it this way

But the reasoning government/politicians are trying to give is once they make them legal or provide EAD, at least they start paying taxes to US government (not sure how true it is)

In case of legal skilled immigrants like us, we are already paying taxes so we are not the priority and they care less 

Regarding the law firm not raising any voice, once again its all about money. All a law firm wants is to make more money out of H1B extensions, GC process on employer change, immigration work etc. Once you are on EAD, you are mostly done with these immigration costs and free bird (and hence no more money making machine for immigration system-USCIS/lawyers)

So, in case we get EAD or about to get EAD, I am sure most law firms would raise the voice against it and water it down(just the way they did after Obama Executive Action. Search for lobbying efforts by immigration lawyer/CoC to see how true it is - eg - disclosures.house.gov/ld/ldxmlrelease/2015/Q3/300761097.xml)

i know its had, but If you think from the point of view of a law firm, they are doing this since they have to make money

[rahul412]

Almost all the law firms didn't returned the 485 filing fees after visagate2015 scandal.