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.

             
                    U.S. IMMIGRATION LAW

See our US$60 Attorney Consultation Offer

Go to the Most Recent US Immigration Topics 

USCIS Releases Proposed Employment-Based Rule

DHS has released the long-awaited proposed rule that mostly codifies the way USCIS already interprets many details of employment-based immigration law.  The proposed rule does, however, suggests a few new initiatives in the areas of petition revocation and employment authorization rules.

I have been silent on this rule as it wound its way through the rulemaking process.  There has been much speculation about its scope, but very few actually knew which immigration issues would even be covered in the proposal, and many of the guesses missed the mark.  For example, what many thought would be increased EAD availability for those with approved I-140 turned out to be essentially a hardship EAD that first requires an H-1B to abandon their nonimmigrant status.

I will not be outlining the whole rule in this blog.  It covers way too many separate immigration topics, and there will be general discussions of this rule all over the internet.  Later, however, I will discuss some of the specific details that I find particularly interesting. 

But remember, this is not a new law - just a proposed rule.  Public comments will be accepted until February 29, 2016. And this is going to be a big fight.  Many strong groups will oppose many of these proposals; employers won’t like the enhanced portability provisions, workers won’t like the very limited EAD availability, and anti-immigrants will hate it all.  Get out the popcorn, this is going to be a show.


Go to the Most Recent US Immigration Topics 

View Qualifications of Attorney James W. Austin

H-4 EAD Attorney Fees for §106(a) Cases

There are two ways to qualify for an H-4 EAD: 

    (1) Spouse with an approved I-140, Petition for Immigrant Worker, and

    (2) Spouse in an H-1B “period of stay” including time under AC21 §106(a), much more complicated.

I-140 Based H-4 EADs

 If you qualify under the first group, an H-4 EAD based on an approved I-140, requesting the EAD is fairly simple to do on your own.  I have posted basic H-4 EAD filing instructions here.   My office only prepares these I-140-based H-4 EADs as a courtesy for our current H-1B clients and their families since we already have their full H-1B and H-4 records.  However, we rarely offer to prepare I-140-based H-4 EADs for non-clients.  It is easy to do on your own, and unless there are special complications, the service is not worth the fee I would have to charge to cover our time and expenses.

H-4 EAD under AC21 §106(a)

My office WILL prepare and file §106(a) H-4 EADs for anyone, even if their H-1B spouses are not our clients.  We do this because proving H-4 EAD eligibility under §106(a) can be complicated and there are people who need assistance. 

During our consultations, we have seen many Requests for Evidence asking for documents that were not submitted, and even some cases where so much unnecessary evidence was sent that it created confusion.  Since most 106(a) EADs are only for a short duration, these mistakes can shorten the EAD’s validity period.  Additionally, some H-4s are unable to get assistance with their H-4 EAD from their spouse’s employer or attorney.  While many people request their H-4 EAD on their own, and I do not discourage this, some prefer to seek qualified assistance.

For first-time clients, the amount of time necessary for us to fully chart and document the H-1B’s and H-4’s immigration history is reflected by the higher fee.  We are very thorough, leaving little to chance.

Base Attorney Fees -- H-4 EAD based on §106(a)

If this is the 1st H-4 EAD prepared by Austin & Ferguson, LLC

$450    Current H-1B/H-4 clients
$700    New H-4 only clients

If the previous H-4 EAD was prepared by Austin & Ferguson, LLC

$200    Current H-1B/H-4 clients, EAD filed separately
$ -0-    Current H-1B/H-4 clients, EAD with H-4 Extension
$400    H-4 only client


As is required before accepting any new client, a consultation with an attorney is necessary to discuss the case and answer any questions about their immigration situation.  Information on scheduling an attorney consultation can be found here.



             
                    U.S. IMMIGRATION LAW

Go to the Most Recent US Immigration Topics 

View Qualifications of Attorney James W. Austin

Filing H-4 EAD On Your Own with an Approved I-140

These instructions ONLY cover how to file your H-4 EAD on your own if your eligibility is based on an approved I-140, Immigrant Petition for Alien Worker.   

A much more complicated packet of eligibility evidence is required for H-4 EADs based on a period of stay under §106(a).

I have included some comments that give answers to the basic questions I frequently receive about filing for H-4 EADs.

Sample H-4 EAD Application Packet based on Approved I-140 

1.  $380 Check,Payable to “Department of Homeland Security” 

2.  Two color passport photos 

3.  Form I-765

      “I am Applying for...”.  Only check ‘Renewal’ if your last EAD was an H-4 EAD.

     Q.9:     Social Security Number.  Enter your SSN, or 'None’,  not your ITIN.

     Q.10:   Alien Registration Number.  If you have an A Number, else 'None' 

     Q.11:   Yes, if you have requested an EAD before, in any category.  This does not include prior work visas, such as H-1B or L. 

     Q.14:   Status at last entry.  May be different from current immigration status. 

     Q.15:   Your immigration status on the day you signed the I-765.  For most, it will be ‘H-4’.  Not ‘H-4 Dependent”, there is no such status.

     Q.16:   ( c ) (26) (    ).

     Q.17:   Leave blank. 

     Q.18:   Case number for spouse’s last H-1B approval.  Do not enter the I-140 approval case number.

     Signature:  Sign your name within the limited space provided – do not let your signature flow into the form text above. 

4.  Eligibility Proof:  I-140 Approval Notice

5.  Itentity Document:  Front and back of last EAD, with your face recognizable;  OR, if no prior EAD, a Photo ID (usually passport bio page or US State ID) 

6.  Proof of Current H-4 status:  Your last H-4 Approval Notice, OR current H-4 I-94

7.  Marriage Certificate, with translation if necessary. 

8.  Proof Spouse in valid H-1B Status*: 
            Spouse’s last H-1B approval notice or I-94 from last H-1B entry 

            Spouse’s last two paycheck stubs
            [* These three pieces of paper are not required, but recommended for now]

Filing Tips: 

-The above documents are in the order they are assembled for filing. 

-Using a personal check is recommended.  If your case is "lost", the receipt number is written on the back of the check.

-“Duplicate Approval Notices” can be used at all times to show H-4/H-1B status validity dates and for I-140 approvals. 

-All pages sized 8 1/2 x 11.

-Send no original evidence documents – only photocopies. 

-Black and white copies of EAD cards and photo IDs are acceptable.  Be sure your face can be recognized on the photo identification.  

-Before mailing, make a full and complete copy of every piece of the entire filing packet, including photos,check and envelope. Staple this packet and keep for your records.

-Mail the packet to the address designated by USCIS.  

-When it is time to apply for Permanent Residence, it will be necessary to show that all of your employment while holding H-4 status was lawful, so be sure to send a copy of your EAD approval notice to your attorney to keep in your file with your other immigration records.

             
                    U.S. IMMIGRATION LAW

See our US$60 Attorney Consultation Offer

Go to the Most Recent US Immigration Topics 

View Qualifications of Attorney James W. Austin

H-1B Teacher Positions Available, ONLY to Help Specific Distressed Teachers

I am not a recruiter, and this is an unusual offer. This message is directed only to a very specific group of J-1 teachers, licensed in the United States, whose school cannot continue their employment because of the H-1B cap. 

Here is the background: 

Many Filipino teachers enter the U.S. on J-1 visas for two (and sometimes three) years. Most hope they will later be changed to H-1B status so they can stay in the U.S. for many more years. However, there is a cap on the number of new H-1B petitions issued by USCIS each year. In 2015, only 1 new H-1B petition out of 3 were granted by USICS. This has caused some schools to not risk their money by filing H-1B petitions, and for those schools that did file H-1B petitions for their J-1 teachers, many petitions were denied. For many J-1 teachers, this meant that they must leave the U.S. much sooner then they hoped.

I have public school district clients with SPED, Science (secondary) and Mathematics (secondary) positions available in 2016. They are exempt from the H-1B cap, which means they can file new H-1B positions at any time without the numerical limit known as the “H-1B cap”.

They are willing to consider offering teaching positions to some of these distressed J-1 teachers, BUT THEY MUST belong to one of these two groups who are being harmed by the H-1B cap: 

1. Currently in the U.S. as a J-1 teacher, holds of an unrestricted state teaching certificate, and their current school employer is unwilling or unable to change their status from a J-1 to an H-1B because of the numerical limit on H-1B petitions. 

OR 

 2. Prior J-1 teachers, still holding an unrestricted state teaching certificate, and who recently returned to the Philippines when their J-1 expired and their school employer was unable to change them from J-1 to H-1B because of the numerical limits on H-1B petitions. 

As I stated, I am not a recruiter. This is only to help these certain teachers who find themselves in this sad situation. I have absolutely no involvement in the hiring process. My only participation is to verify the teacher meets the requirements above, appears to be eligible for an H-1B petition, then to pass on their information to the potential employer. Absolutely no fees are being charged to either the teacher or the employer for this service, and only the potential employer can make an offer of employment. 

 If you, or someone you know, may qualify for these positions, and meet the requirements listed above, they can contact me at Jim@AustinFerguson.com with “H-1B Teacher” in the subject line and a description of their situation. 

Feel free to link to this post in any media that will help it reach someone that may be helped by this information. 


             
                    U.S. IMMIGRATION LAW

Go to the Most Recent Philippines-US Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page

Attorney Consultation Offer for Blog Readers

 

Telephone Consultations -- $60.00 

Do you have questions about any U.S. immigration issues?  This is your opportunity to get reliable answers. 

To discuss your case with Attorney Austin, follow these three simple steps: 

1. Call 816 356-7100.  Appointment times are limited, but the operator will try to help you find a convenient date and time for your call. 

2. Make your payment. The $60 consultation fee can be made using the PayPal button at the bottom of this post, or can be made by credit card on the phone when you call for your consultation. 

3. Call 816 356-7100 at your appointment time (or a few minutes earlier if paying with credit card by phone). 

If you need an explanation of why our fees seem low, click here.  

Detailed information about how to prepare for your telephone consultations can be found on our website here. 

This offer is valid only until this post is removed. 

             
                    U.S. IMMIGRATION LAW

Go to the Most Recent US Immigration Topics 

View Qualifications of Attorney James W. Austin

Healthcare Recruiter’s Code of Conduct

Austin & Ferguson, LLC has endorsed the Code of Ethics for International Healthcare Recruitment, as prepared by the  American Association of International Healthcare Recruitment.

After seeing decades of abuses committed by shady foreign recruiters, often violating the laws of the country where they are licensed, we are happy to see movement towards protecting workers from their unscrupulous fees and practices. 

Although Austin & Ferguson, LLC is not a direct recruiter of overseas workers, we will from time to time make known employment possibilities as an unpaid service for some of our business clients, and also will continue to press employers to only deal with reputable recruitment agencies abroad.

             
                    U.S. IMMIGRATION LAW

Go to the Most Recent Philippines-US Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page

Austin & Ferguson Picked for Best Lawyers® in U.S. Immigration Law

Thank you to all of our clients for 
placing your trust in our services.




                     U.S. IMMIGRATION LAW







                     U.S. IMMIGRATION LAW


Go to the Most Recent Philippines-US Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page

Special Program For Families of Filipino WWII Veterans – Immigration Executive Actions

USCIS announced the creation of a new program today that will assist the families of Filipino-American WWII veterans to enter the United States.  First proposed in July, 2015, the program will allow U.S. entry of some family members so they may and support the U.S. Citizen or Permanent Resident WW2-veteran relative.

There are an estimated 6,000 U.S. Citizens or Permanent Resident Filipino American World War II veterans in the United States.

Details of the program have yet to be formally announced, but it is very likely to closely resemble the Haitian Family Reunification Parole Program (HFRP).

Under the Haitian program, overseas relatives who are the beneficiaries of approved relative petitions will be “paroled” into the United States, allowing them to wait in the United States until it is time for them to apply for permanent residence.  The “paroled” relative will be eligible to request employment authorization.

Under the HFRP model, immediate relatives (spouse, parents or children) of U.S. Citizens are not eligible for this parole program since they already have immigrant visas immediately available.  The program only covers relatives with approved petitions in the following categories, and will allow in some relatives as much as two years prior to when it is believed their priority dates become current.

            FB-1:         Unmarried sons and daughters (over 20 years-old)
                                    of U.S. Citizens
            FB-2A:      Spoused and children of Permanent Residents
            FB-2B:      Unmarried sons and daughters of Permanent
                                   Residents
            FB-3          Married sons and daughters of U.S. Citizens
            FB-4:        Brothers and sisters of U.S. Citizens

More information will be posted once the program details are announced.



Go to the Most Recent Philippines‑US Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page

EB-3 Philippines Early Adjustment Filings Take A Hard Hit Before Program Even Begins

In the October Visa Bulletin, USCIS began a new program that allows many people to file their applications for Permanent Residence before their priority dates become current.  This benefit will allow many future Permanent Residents to obtain early employment and travel authorization. 

That same October Visa Bulletin published a “Filing Date” chart.  If an applicant’s Priority Date was earlier than the Filing Date, the applicant could file their early application for Permanent Residence, beginning October 1, 2015.

Today, only sixteen days after the October 1 Filing Dates were published, USCIS advanced the October 1 Filing Dates for five immigrant groups, greatly reducing the number of potential early applicants eligible to file on October 1st.

EB-3 Philippines is the group most harmed by this change. 

The Visa Bulletin published on September 9 allowed any adjustment-eligible EB-3 Filipino (and their derivative applicants) to file for Permanent Residence if their priority dates were priority dates were before January 1, 2015.  Today, the EB-3 Philippines filing date was changed to January 1, 2010 – disqualifying hundreds of potential early adjustment applicants.

There is no explanation for this change other than USCIS error in calculating the visa demand.  And there is nothing for those harmed by this action to do but to wait to see what happens next!

Although Philippines EB-3 took the hardest hit today, four other immigrant categories were also adversely effected by today's announcement.  Those categories (and the duration of their Filing Date regression) are:

EB-2 China                1 year, 5 months

EB-2 India                  2 years

EB-3 Philippines       5 years

FB-1 Mexico              3 months

FB-3 Mexico              1 year, 5 months

This change is very disappointing to those who believed October 1 would mark a major step towards their dreams of permanent residence. 

Go to the Most Recent US Immigration Topic 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page

USCIS Allows Early Permanent Residence Filings!

Beginning October 1^st, USCIS will allow many applicants to file for permanent residence before their priority date is current! 

This exceptional change means that applicants (and their derivative family members!) can now get the extra benefits available to those with an Application for Permanent Residence pending, such as travel and employment authorization.

From the October Visa Bulletin for the Philippines:

                        Actual                    File for Permanent 
Category        Priority Date         if Priority Date Before:

FB1                 Jun 1,2001                 Sep 1, 2005

FB2A              Apr 15, 2014             Mar 1, 2015

FB2B              Oct 1, 2004                Jan 1, 2005

FB3                 Oct 1, 1993                Aug 1, 1995

FB4                 May 1, 1992               Jan 1, 1993

EB1                All                                All

EB2                All                                All

EB3                Jan 1, 2007                Jan 1, 2015

EB3 OW         Jan 1, 2007                Jan 1, 2015

If you are legally eligible to ask for permanent residence without the need to leave the United States, AND if your Priority Date is earlier than the date shown in the far right column, you can file your application for Adjustment of Status on or after October 1, 2015.

BUT REMEMBER, you will not be granted Permanent Residence until your priority date actually becomes current.  Also remember that if you do file early, as allowed under this new procedure, you will later have to update your permanent residence application (i.e. tax returns, new medical) before residence is granted.

Check back later for updates!

Go to the Most Recent Philippines‑US Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page

See our US$60 Attorney Consultation Offer

Waiting Out Philippine EB-3 Retrogression

In April earlier this year, the Philippine EB-3 cutoff date was October 1, 2014.  An immigrant visa was available to anyone with a current priority date and their paperwork completed.  The cutoff date for next month (September, 2015) is now December 22, 2004 – a 10-year regression.  No one with a priority date newer than December 2004 can presently ask for permanent residence.

 If history is any indication, the wait may be long before Philippines EB-3 priority dates return to 2014.

If you find any of these terms confusing, you may wish to review Basics and Tips for Understanding the Visa Bulletin. 

Philippine EB-3 has retrogressed several times this century.  One of the most significant retrogression events was in July, 2008.  Just as with the current retrogression, the 2008 event was preceded by many months of rapidly advancing priority dates.  In the nine months before the July 2008 retrogression, the Philippine EB-3 cutoff dates advanced almost 3 1/2 years.  It was not until March 2012, after 44 months of gradual advances, the cutoff dates returned to the where they had been in July 2008.

Our current retrogression began in May.  In the nine months leading up to May, the cutoff date for EB-3 Philippines advanced over four years – a more rapid advance than what preceded the 2008 retrogression. 

Regressing priority dates cause many people to feel confused and uncertainty about their cases.  Here are a few thoughts to consider during the wait.

IF Your Adjustment of Status Application was Filed and Now Waiting for Priority Date

If you filed for permanent residence earlier this year before the retrogression, you will not be harmed.  Although you will not be granted Permanent Residence until your priority date is current again, you will continue to be eligible for employment and travel authorization.  

The decision to drop H-1B/H-4 status while the adjustment application is pending will be the subject of a later post.  However, many choose to rely on the employment and travel benefits available through the residence application, thus avoiding the costs associated with H-4 extensions and H-4 EADs.  Remember, once you file for permanent residence, there are no additional fees for renewing employment authorizations and advance parole.

Periods of retrogression can lead to the sometimes useful legal option called Employment-Based Portability.  In some cases, after your application for permanent residence has been pending over 180 days, you can move to a different employer as long as the new job is in the “same or similar occupational classification”.  When eligible for Employment-Based portability, a new labor certification or petition is not required.

If you are stuck in this long wait for a current priority date, do not be too disappointed by this set back.  Always remember that it was the exceptionally rapid cut off date advancement that gave you the opportunity to file early for Permanent Residence in the first place.

H-1B with Approved I-140 but no Residence Application Filed

Here, the options are few.  As you already know, you cannot file for permanent residence until your priority date becomes current.  There has been some talk of changing this law, thus allowing you to file for residence immediately upon approval of the I-140, but I do not see that happening in the near future.

Most H-1Bs will just continue to remain in H-1B status until their priority dates become current.  For some, even without retrogression, the wait can run to ten years or more.  AC21 section 104(c) allows you to continue extending your H-1B status in 3-year increments, and we now have the H-4 EAD rule to help ease the burden of the wait by allowing employment authorization for H-4 spouses, also in up to 3-year increments.

Waiting for the Consular-Issued Immigrant Visa

Unless your visa case was interview-ready and you were able to join the mad rush for a visa in May at the Manila Embassy, you are the group most-effected by retrogression.  There is little that can be done for workers in need of an immigrant visa to make their first trip to the United States.  Unless you are eligible for some other temporary visa, there is nothing to do but to wait and hope the employer will still have a position available when your priority date is again current.

Rapidly advancing dates sometimes raise a false belief that the wait for an immigrant visa is almost over.  Unfortunately, that is often not the case.  For immigrant cases still at the National Visa Center, or cases yet to be started, the wait may now be lengthy. 

Go to the Most Recent Philippines-US Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page

Atlanta Fil-Am Independence Day Gathering

On Saturday June 6th I was happy to be a guest at the Kalayaan Family Fun Day (celebrating the 117^th anniversary of independence from Spain) and 5K run held at International Park in Jonesburo (Atlanta suburb) Georgia.  With the estimated attendance topping 500, this was a very large gathering!

Thank you to all of those who made us feel so welcome.

Go to the Most Recent US Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page

Your H-4 EAD Questions Answered -- Blog Reader Events

Updated December 30, 2015

The comments on this post were from a live discussion on H-4 EAD issues held on Saturday, May 23, 2015. That discussion has ended and this post is now closed to comments. 

 

See more recent H-4 EAD Updates

See How to File I-140 Based H-4 EADs on Your Own.

             
                    U.S. IMMIGRATION LAW

Go to the Most Recent US Immigration Topics 

View Qualifications of Attorney James W. Austin

Is an attorney necessary for H-4 EADs?

In most cases, the answer is no.  The majority of H-4 EAD applicants will not need a lawyer file for their H-4 EAD. 

Remember, there are two different groups of H-4s who qualify for EADs:

1.  Those with an H-1B spouse who has an approved I-140, and

2.  Those with an H-1B spouse who is in “a period of stay under AC21 106(a) & (b)”.

The vast majority of H-4 EADs will be issued to the first group – eligibility based on an approved I-140.  EAD applications in this category will usually be very easy.  Show valid H4 status, evidence proving the relationship between the H-4 and the H-1B, and evidence of an approved I-140.  Most of the time, very simple and a lawyer is not needed.

Then there is the other, smaller group, with eligibility based on 106(a).  The exact requirements for proving EAD eligibility based on 106(a) is much more confusing, with cases ranging from slightly complicated to a major headache.  Obviously, you will still need to meet the basic requirements proving your H-4 status and a valid marriage.  However, unlike the I-140 group, there is no single document that shows an H-1B has received an extension of status under 106(a).  In some cases, only three pieces of paper may be needed to prove the 106(a) extension.  Other cases will not be as easy and may require 10-20 documents before USCIS will be satisfied with the evidence.

Here is the background to the 106(a) evidence problem:  USCIS does not specifically track extensions of stay that are based on 106(a).  When an extension is granted by USCIS, it is decided by the examiner based on the evidence in front of them at the time.  If the papers prove that the H-1B should be granted an extension of stay beyond six years because of 106(a), the officer grants the extension.  However, there is no electronic record showing that 106(a) was the reason the extension was granted.  Therefore, to apply for the H-4 EAD under this provision, you must submit almost all of the same evidence that was submitted for the H-1B spouse’s extension beyond six years.

I am not going to list all of the many documents that can be used to prove H-1B time under 106(a).  You can read USCIS’ suggested documents on their webpage   or in the I-765 instructions I posted previously.  But the main reason I do not list documents is because good attorneys do not merely work off of a “list”.  Instead, attorneys consider what must be proved, then supply the evidence to prove each requirement.  We think in terms of proving requirements, not supplying a bunch of documents.  While that may sound elitist, it is a fact and is one of the reasons a filing packet submitted by a competent attorney will often be smaller and more concise than an application filed by an individual. 

Why Some People Still use Attorneys

You are never “required” by USCIS to have an attorney for any immigration benefit, and I have already said that most H-4 EAD applicants do not need a lawyer.  Yet, even in simple cases, some people still insist on having a lawyer file their case.  Sometimes it is a waste of money.  Sometimes not, but here are a few of the reasons I hear for why some people may still use an attorney to file their H-4 EAD.

1.  Required by your employer.  This is a poor reason, since the employer has no legal or ethical right to be involved in the H-4’s EAD application.  Whether the H-4 works or does not work is none of the employer’s concern.

2.  Attorney Continuity.  This is not too bad a reason.  If you have an attorney who is closely watching your family’s immigration activities, it is good for the attorney to be aware of any application you may file with USCIS.  Once you start filing documents on your own, your attorney will no longer has a complete record of your actions.  An incomplete view of your case could later lead to confusion and possibly some unintentionally bad advice.

3.  Insecurity.  Some people are just exceedingly nervous about making mistakes and know they will sleep better if they have someone else deal with their application.  Others just hate to complete forms.

4.  Requests for Evidence (RFEs).  Should USCIS ask for more information on an application, often a good attorney is in a better position to understand and respond to the request.  Also, while even attorneys are not immune from RFEs, it is also certainly hoped that attorney-filed paperwork will result in fewer RFEs than individual filings!

One Final Thought- 

Many people should be able to get through H-4 EAD process on their own, while others may require some guidance.  Even if you plan to prepare your own application and do not intend to hire an attorney, you can always have a lawyer review your work before it is filed.  Any reputable attorney should be able to answer all of your questions and concerns without pressuring you into hiring them. 

We have waited a long time for H-4 EADs.  I wish you all the best of luck and speedy processing! 

Go to the Most Recent US Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page+

Subscribe for Email Delivery of New Blog Posts

Have New Blog Posts Delivered to Your Email

 There is no need to repeatedly check this blog for new postings.  Join the hundreds of readers who have new blog posts delivered daily to their inbox.  No spam, no advertisements.  Just a single email with that day’s blog postings.

To subscribe when using a desktop computer:

Scroll to the lower right of the main page, enter your email address and click “Submit”.

To subscribe on a mobile device:

For mobile users, scroll to the bottom of this page, hit “View Web Version”, then scroll to the lower right and enter your email address and click “Submit”.

USCIS Issues H-4 EAD Answers and Details

USCIS has finally released the long-awaited Questions and Answers for H-4 EAD applications.  While some of the answers lacked clarity, there were no real surprises.  Most of the procedures they describe follow long-established USCIS positions on status and benefit eligibility.

However, there was one big win – an expansion of coverage under AC21 §106(a) and (b).  More on this below.

The new I-765 form will be posted soon.  New instructions will also be posted, but until then, you can find the text of the future H-4 EAD [(c)(26)] instructions in this post from six weeks ago.  

Since everyone has access to the Q&As, I will only discuss the most important answers.  Most of the answers were expected, but we were all waiting for final confirmation:

Travel out of the U.S. while an EAD application is pending?  As expected, allowed for stand-alone EAD filings, but not for EAD requests filed concurrently with a change or extension of status. 

Filing for EAD when not in the United States?  Not allowed.  Since only a person in H-4 status is eligible to apply for this EAD, and a person not in the U.S. does not have any nonimmigrant status, a person outside of the U.S. cannot apply for an H-4 EAD.

Revoked I-140.  If your spouse is the beneficiary of only one approved I-140, and if the I-140 is revoked, EAD eligibility ends.  You cannot apply for an H-4 EAD under this eligibility category if the only I-140 has been revoked.

I-140 Revoked after H-4 EAD issued?  USCIS has continually held that they have the discretion to revoke a person’s EAD if eligibility ends during the validity period of the EAD.  We see this in several other EAD categories, and the operative word is “discretion”.  USCIS did not say the EAD is automatically revoked.  USCIS says they can revoke the EAD if they chose to do so.  From long experience I can say that USCIS rarely revokes an EAD outside of the adjustment of status context.  I will save a detailed discussion of this for a later post.

THE BIG NEWS: Expanded EAD Validity time under AC21§106(a).  This is where USCIS could have been more clear with their answer.  The correct question was asked, but the answer was obscure.  But we will take it.  According to the first Question, 106(a) H-4 EAD eligibility includes all time in H-4 status during an extension of stay that includes any time under 106(a).  This is what we have been advocating since the proposed rule was published, and continued to push USCIS to clearly state after issuing the final rule.  This will allow, in certain cases, for an H-4 EAD under the 106(a) prong to be valid for more than just one year.   More detailed discussions of the 106(a) dilemma can be found in this post from five months ago!

However, I will give this warning:  If you are one of those H-4s who may benefit from this expansion, grab it quickly.  A USCIS Q&A does not have the force of law or regulation, and can be changed at any time.  Once attorneys become fully aware of this provision, there are possible scenarios that may cause USCIS to change their position on this.

Watch for these Upcoming H-4 Post Topics:

            --When You Do Not Need an Attorney for H-4 EADs

            --H-4 EAD Fees

           --Day and time for next Your Questions Answered Live on this blog.

Go to the Most Recent Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page