Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
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Thursday, February 12, 2015

H-4 EAD- Wait for the Rule!!

More H-4 EAD information is becoming available as we get closer to the final rule release date.  However, there are still several important questions that remain unanswered.

Problems and issues to be discussed in the final rule were previously discussed here.

To begin with, we now know H-4s will not have to prove “economic necessity” before being issued an H-4 EAD.  As background, some EAD categories require the applicants to submit evidence showing an economic need for working in the United States.  The proposed H-4 EAD rule hinted that proving economic need might be required.  The final H-4 EAD rule will explain that no showing of “need” will be necessary before an H-4 EAD will be granted.

Second, we also know now that the final H-4 EAD rule will not greatly expand the group of H-4s eligible for an EAD.  Many comments to the proposed rule suggested EADs should also be given early to H-4s with spouses who will become 106(a) eligible in the future, H-4 children, and even to any H-4s.  USCIS did not adopt those suggestions.

There are still many H-4 EAD questions unanswered.  For example, applicants can request an H-4 EAD simultaneously with a request to extend H-4 status,  but can you file for H-4 EAD along with a request to change status (i.e. from F-1 or H-1B to H-4)?  Some are saying “yes”, that you can file for an EAD with a change of status, basing their opinion on the recently released wording that will appear in future I-765 instructions.  However, these people are confusing the title of the I-539 Form with the actual action being allowed.  The I-765 instructions will state that you can file simultaneously with your “I-539, Application to Extend/Change Nonimmigrant Status.”  But in all the textual discussions, all references are only to “extensions of stay”.  We will have to wait for the wording of the final rule before we have an answer to this question. 

The biggest question involving H-4 EAD eligibility is not yet answered:  When does H-4 EAD Eligibility under AC21 §106 begin?  The proposed rule allows H-4 EAD eligibility “ “...only during AC21 extension periods granted to the H-1B principal worker ...”.   This view would create major evidentiary issues and limit the availability of H-4 EADs to those who may otherwise qualifying under this provision (discussed in detail here). 

Although we do not know for sure, the new I-765 instructions give a glimmer of hope that USCIS will clarify and expand H-4 EAD eligibility under this AC21 provision.  Instead of using the proposed rule’s eligibility wording of “only during AC21 extension periods”, the I-765 instructions will refer to eligibility if “...the principal H-1B nonimmigrant has received an extension of stay under AC21 106(a) and (b).”  This minor wording change may be significant.  The latter phrase can be read to include eligibility during multi-year extensions that happen to also include time under AC21 106(a).  Nowhere in the proposed rule did they ever use the broader phrase, “has received an extension”. 

Certainly not definitive, but at least slightly hopeful.  Again, we wait for the Final Rule.

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