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.

Wednesday, December 30, 2015

H-4 EAD Update & Experiences

Yesterday I posted basic instructions for putting together a filing packet for an H-4 EAD based on an approved I-140.

Below are some additional observations on USCIS’ implementation of the H-4 EAD program, and answers to a few of the most common questions I have received.

H-4 EAD Update

1.  EAD Processing Times.  Like with all EADs, USCIS’ goal was to issue the EAD within 90 days.  During the summer they were meeting this goal.  However, USCIS encountered difficulty producing the documents this late summer and, combined with other workload issues, fell behind in EAD adjudication and issuance.  Most H-4 EADs are being now being received in the 3 to 4 month range, although some EAD adjudications are still up to five months.  We should start seeing H-4 EADs issued in the 2-3 month range by the end of January.2.  When to file.  A stand-alone H-4 EAD can be filed no more than four months before the start date of the EAD.  The only exception is when the EAD is filed in the same package as the H-1B and H-4 extension/change of status.

3.  Employment Gaps Between EADs.  Delayed EAD renewals create big problems.  Your EAD is your employment authorization.  Once your current EAD expires, you are no longer authorized to work until you physically receive your new card.  The approval notice or approval email are not sufficient to authorize work.  Also consider that the beginning date of your EAD is the date USCIS decided your case.  If USCIS approved your I-765 after your current EAD expired, there will be a gap between when the old EAD expired and the new EAD begins.  Although many employers might be lenient during such gaps, your working during that gap is still a status violation, and creates an issue that must be addressed when you later try to extend status, or when you file for permanent residence.  While this sounds like a harsh law, and it is, there are ways to get back into lawful status.  If you find that you have worked without authorization, trying to conceal the problem will just make matters work.  Discuss the issue with your attorney to work out a way to get back in valid status.

4.  Initial EADs under 106(a).  Remember, when applying for the first H-4 EAD under 106(a), it is sometimes possible for the first EAD to be for more than just one year (full discussion here ).  In the final H-4 EAD rule, USCIS quietly adopted the argument that the EAD can include both the 1-year under 106(a) PLUS the remainder of the initial 6 years.  While we have had no problem with this (we make a clear request in our cover letter), we have seen reports of some H-4s EADs only being limited to the 1-year under 106(a), with the EAD validity date not starting until many months after it was issued.  While this could show an inconsistency in USCIS adjudications, it may also be a result of poor documentation submitted with the EAD request.  Either way, it is unfortunate that the H-4 EAD applicants lost many months of potential employment while waiting for the 1-year EAD start date.

5.  Your Signature.  This is really stupid.  USCIS revised the I-765, allowing very little room for the signature, then penalizes you with a Request For Evidence asking for a new signature if your signature extended much below the line, or overlaps any of the form text directly above it.  When you sign the I-765, sign small!

6.  Premium Processing.  From the beginning of H-4 EADs, USCIS could not and still will not say that their policy is to process the H-4 EAD when adjudicating the Change/Extension of Status.  However, experience now shows that in most cases, they are adjudicating the EAD along with the change/extension petition.  Please remember that USCIS is not required to do this, but it is being done as a courtesy for which we should all be very thankful.

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