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 1^st.  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 7^th year, 

            OR

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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H-4 EAD - Detailed Summary Soon

Today USCIS announced the Final H-4 EAD Rule will be published tomorrow and applications will be accepted beginning May 26, 2015. 

While this is good news, all we learn from this announcement is the effective date of the new rule.  

Later today I will discuss the details that will appear in the Final Rule.

[Edited to add:  the detailed discussion can be found here]


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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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