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.
View Qualifications of Attorney James W. Austin
Go To Austin & Ferguson, LLC Home Page+
