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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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.


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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.



             
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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.

             
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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. 


             
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