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.

Friday, May 22, 2015

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.

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Thursday, May 21, 2015

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! 

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Wednesday, May 20, 2015

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.

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