Last week I outlined the sections of the proposed rule that USCIS will hopefully clarify in the final rule. As the time approaches for the final rule to be released, people are asking more questions about the eligibility requirements for the second group of H-4s – when the “...H–1B nonimmigrant’s period of stay in H–1B status in the United States is authorized under sections 106(a) and (b) of [AC21]”.
The basic rule is that H-1Bs are allowed a maximum of six years in H1B status. Several exceptions exist to this six year limit. AC21 106(a) is one of those exceptions. 106(a) allows H1B status to be extended in one-year increments beyond the basic six years if the workers’ Alien Labor Certification OR Immigrant Petition (I-140) has been pending for over one year. The most common scenario for using this provision are when there are delays during the Alien Labor Certification process (audits, appeals, supervised recruitment, etc.) or petition adjudication.
USCIS indicated in the Proposed Rule that the H-1B must actually be in that 106(a) extension time before the H-4 spouse is EAD eligible. At first reading, this seems simple enough. Just determine the exact date when the basic six years ended, and then any H-1B time after that must be under a 106(a) extension. So, on the exact first date after the basic six years, H-4 EAD eligibility will begin. And there is the problem
106(a) time only begins after six years IN H-1B status, not six years after H-1B status begins. In many cases, these are two separate dates because only time spent in the U.S. and in H-1B status counts toward the basic six years. There are many situations where a person is within the H-1B time periods shown on their approval notice, but their time is not being counted towards H-1B status. For example, any time spend outside of the U.S. does not count against the basic six years of H-1B (you are not an H-1B if you are not in the U.S.). Similarly, because of delays at the consulate in obtaining that first H-1B visa, it is not uncommon to enter the U.S. weeks or months after the H-1B was approved by USCIS. The time between the approval notice start date and the U.S. entry is not counted towards the basic six years. There are many other similar events that will cause the actual end of the basic six years to be much, and sometimes years, later than just the six calendar years that might be indicated if only looking at the H-1B approval notices.
The problem determining the exact date when the basic six years ends is further complicated by the frequent need to request the 106(a) extension at the same time as requesting to “recapture” the non-H-1B time described above, and also to request “remainder” time left on the basic six-years caused by prior USCIS approvals of less than 3-year durations.
As you can see, determining exact beginning dates of 106(a) extensions are not always simple. USCIS does not specifically track H-1B cases that include 106(a) extensions, and they have acknowledged in the past the evidentiary problems encountered for accurately determining the correct end date of the basic six years. Of course, for several reasons I need not discuss here, it was rarely important to determine that all six years had been used before requesting the 106(a) extension. But that will change if the exact beginning date of the 106(a) extension becomes the actual triggering event for H-4 EAD eligibility.
Several suggestions were made in comments to the proposed rule that would make this EAD eligibility ground more expansive and easier to document. We will have to wait until the Final Rule is released to see what changes were made to this H-4 eligibility category.
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