Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
Remember- These writings are provided for general information only and do not constitute legal advice, nor do they create any attorney-client relationship. Each person's needs and requirements are different and require a personal evaluation to determine the proper legal course of action.

Tuesday, February 24, 2015

H-4 EAD Rule – Some Answers!

Several questions about H-4 EADs were answered in the Final Rule (to be published in tomorrow’s Federal Register).  Yet, not all issues were fully clarified.  You can find the basic rule information anywhere.  Here are some comments on the details:

Changes From the Proposed H-4 EAD Rule

EAD Validity Duration.

The proposed rule discussed allowing up to a two-year EAD validity and included a request for comments on alternatives.  The final rule allows the EAD validity date to match the H-4s period of stay, up to a maximum of 3 years.  A very smart improvement over what was initially proposed.


Concurrent filing with Changes of Status.

Although not specifically stated in the final rule, it appears that applications for H-4 EADs can be filed concurrently with requests to change status to H-4.  In the proposed rule, every mention of simultaneous filings directly referred only to extensions of status.  Changes of status were never discussed.  However, in the regulatory changes to Form I-765, and now also in the H-4 EAD rule, all written references to concurrent EAD filing are paired with “an Application to Extend/Change Nonimmigrant Status (Form I-539)”.  The elimination of referring only to extensions of status strongly indicate concurrent EAD filings with changes of status will be allowed.

Advance Filing Period.

Requests for H-4 EADs submitted at the same time as a request to change/extend H-4 status (Form I-539) can be filed up to six months before the start date of the EAD.  Six months matches the filing window allowed for extension/change applications.  This is a positive change from the proposed rule which only allowed a four-month advance filing window.

H-4s Will Not Be Required to Show Special Need for the EAD. 

Proving your economic need for an H-4 EAD will not be required.  In the Paperwork Reduction Act portion of the proposed rule, USCIS included time and response calculations that included the Form I-765WS, a form used to document financial need for the extra income that would result from employment authorization.  “DHS has corrected this error” in the final rule.

Marriage Certificate.

The words, “evidence of the spousal relationship” have been added as a requirements for an H-4 EAD.  Most likely this will be satisfied by merely submitting a valid marriage certificate – a requirement that was expected but not listed.  Remember that for some immigration benefits, the applicant must also submit other documents to show the marriage is a true relationship and not just for immigration purposes.  However, the exact wording “evidence of the spousal relationship” can also be found in other immigration provisions and is usually satisfied in those cases by just the certificate alone.

Other H-4 EAD Observations:

Why H-4 EAD Effective Date is 90 Days Out.

Normally this type of rule would have an 30 day effective date.  This rule has a 90 day delay (5/26/15) so it filing will begin after the dreaded “H-1B Cap Season” beginning April 1st.  The huge number of initial H-1B applications USCIS receives in the first week of April places a large demand on their resources that lasts for many weeks.  By delaying the expected high number of H-4 EAD filings until late May, USCIS can better allocate their resources for maximum efficiency.  Although we hate to wait the extra two months, for those of us who have experienced USCIS mailroom meltdowns in the past, the explanation for the delay is reasonable.

H-4 EAD Eligible if Original I-140 Revoked and Subsequent I-140 Pending?

The final rule provides little help for H-1Bs whose I-140 is revoked after changing jobs, and a new -140 has not been approved.  This creates a situation that is difficult to fully discuss due to the large number of factual variables these cases present.  I will cover revoked I-140s in a later writing when there is more time to explore all the options.

THE BIG UNANSWERED QUESTION: When Does Eligibility Begins under §106(a) and (b)?

First, consider this scenario:  
An H-1B worker requests a 3-year extension that includes the remaining two years from the initial six years, plus an additional year under 106(a).  Mixing 106(a) time with the remainder of the first six years is a common occurrence.

Now, here is the short version of the problem: 
Does H-4 eligibility ONLY begin when the H-1B worker begins the 7th year, 


Does H-4 eligibility begin any time the H-1B is working during an single extension period that included time under §106?

A detailed discussion of this issue and its inherent evidentiary problem can be found here.  

The final wording in the new regulation changed little from the proposed rule, and allows H-4 EAD eligibility under §106 if:  

“...the H-1B nonimmigrant’s period of stay in H-1B status is authorized in the United States under sections 106(a) and (b)...” 

Elsewhere in the rule we find the 106(a) requirement described as:

The H-1B “... has been provided H-1B status under sections 106(a)...”. 

“... H-1B has received an extension of stay under AC21 106(a) and (b).” 

“... has been granted status pursuant to §106(a)...” 

When considering that an H-1B’s “period of stay”, or “H-1B status”, or “extension of stay” are all granted by USCIS as a single block of time, these words can be read to cover either eligibility theory.

Since the final rule is vague on this point, perhaps intentionally, an answer will eventually come from USCIS in some form, hopefully as a policy memo and eventually as an inclusion in the USCIS Policy Manual.  

Still, all things considered, a very good rule!

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  1. My husband is in 6th year of H1b and has an approved I-140 from his previous employer. The I-140 is not revoked/denied. And his current employer already started his GC process and filed his PERM application. Am I eligible for work authorization. Can I provide my husband's previously approved i-140 petition and apply for H4 EAD?

    1. Yes, you can use an old I-140 to qualify for H-4 EAD as long as the I-140 is not revoked.

  2. What is the expected processing time for the H4 EAD application? So, if an H4 candidate applies for EAD on May 26th, when can he/she expect to get their EAD card?

    1. When it comes to processing times, there are rules and their are realities. If this is a "stand-alone" (filed by itself without a request to change or extend status) EAD request, USCIS is supposed to process the application in 90 days (rules), but does not always. A safe estimate for stand-alone EADs would be 2 to 4 months unless USCIS requests more evidence. Maybe longer if 1000's of cases are filed on May 26th (realities)!

  3. I heard that there is a strong opposition to this H4 EAD rule by some leaders. Can they affect this law in anyway?

    1. There are some people who are always against any rule change, but stopping H-4 EADs is very unlikely. This rule is not very controversial compared to most other immigration actions. Regulations are the government's way of explaining how they will apply laws passed by Congress, so if Congress changes the underlying law, the rule is void. Very unlikely.

  4. Hi, I was on H1 before changing to H4 and I maxed out in H1. My husband is on H1. Am I still eligible for H4 EAD if my husband has a valid I140?

    1. Prior time as an H-1B before changing status to H-4 has no effect on H-4 EAD eligibility.

  5. Hi James,

    My husband has an approved I-140 and he is on 7th year of H1B stay, however H1B extension expiring in September 2015, which means my H4 status is expiring at same time. So shall I file my H4 EAD on 5/26/2015 or only when my I-539 is getting filed(H4 extension) along with my husband's H1B extension under same employer ?

    Please advise.

    1. This is a question we are dealing with for many of our clients. A lot of H-1B/H-4s expire in the last week of September, and there are many different options - too many to discuss here - depending on the circumstances on each case. I am hoping to do find time to do a blog post discussing these filing options in the next 36 hours.

  6. Hi James,
    Thanks for taking your time and answering our queries. I am working outside of US from past 1 year, and I have valid H4 Visa & stamping. I traveled to US in the last year and got I-94 which shows H4 status. Can I apply for H4 EAD using I-94 and my spouse I140 even though I am not residing in the country ?


    1. You ask if you can file for H-4 EAD when outside of the U.S. This is a tricky question, and despite what you can read on the internet, there are few easy questions with Immigration Law!

      I cannot give a general answer because the answer depends on your specific facts, such as when you left, when you will return, timing of application, validity periods, etc.

      So you understand why the answer is not simple, consider this. Only H-4s can apply for this EAD, or someone changing status to H-4 while in the U.S. When outside of the U.S., you are not an H-4! Your immigration status is only valid when in the country. This is the same rationale we use to recapture H-1B time for time spent out of the country. So, in most cases, you should be in the U.S. to apply.

      Sorry for the vague answer, but you can now see why the answer is not always clear!

  7. Hi James,
    Thank you for your help in getting understanding if the rule. I had one question. For those spouses who are eligible per this rule for EAD but are on H1B status as of now. What do you think the timeline looks like? I understand they can file H4 COS and EAD application concurrently. But would there be a gap in job between H4 COS approval and EAD of 90 days? Please advise

    1. Your thoughts are correct on the concurrently filing the Change of Status concurrently with the EAD request. You also hit directly on one of the many issues we are seeing with this rule. No, there should not be a 90 day gap in employment authorization, but even a 1 day gap could cause an inadvertent status violation.

      This is something that will be brought to USCIS' attention and hopefully will be discussed when they issue FAQs.

  8. I have an approved 140 and my wife is on H1b..Can she apply for H4EAD or should do H4 first then Apply for EAD?

    1. Until she is an H-4, she is not eligible to receive the H-4 EAD. However, she can file for the EAD at the same time she applies to change her status from H-1B to H-4.

  9. Hi

    I am eligible for this rule as my husband has approved I-140.My question is about EAD validity
    According to the rule EAD card will expire when H-4 visa status expires(basically the EAD is dependent on H-4 visa Status) In that case once my husbands company files extension is it possible to renew EAD ? How much time does it take to renew EAD card under the same rule

    Thank you

    1. I think you have a good understanding of the process.

      The EAD will almost always end on the same date as the underlying H-4 status ends, and you file for a new EAD along with the request to extend H-4 status.

      So, that leaves the question of how long after the extension is approved until the EAD is also approved? It could approved the EAD on the same day (which happens in some other types of cases), or maybe a week later (as has happened in the past). I'm hoping for the same day, but that is an unanswered question the USCIS will need to consider before the rule is impemented.

  10. Thank you everyone for some great questions. Perhaps we will take questions again as more information is released about H-4 EAD processing. Until then, I will continue to post detailed discussions on H-4 EAD and other immigration issues.