H-4 Extensions and H-4 EAD Processing Delays

When an initial or extension H-1B petition (Form I-129) is filed under the Premium Processing program, it is common to also include the H-4 applications (Form I-539) for family members and a request for an H-4 EAD (Form I-765) for the spouse.  The advantage of filing all of these requests together is that USCIS usually decided the H-4 application and H-4 EAD in the same quick time period as the H-1B petition.

USCIS has advised AILA that certain H-4 Extensions and H-4 EADs filed with the I-129 under Premium Processing might no longer be decided simultaneously. 

USCIS previously announced the Premium Processing program would be suspended for up to six months beginning April 3, 2017.  Because of the announced suspension of the program, USCIS is now receiving a substantial increase in the number of H1B/H4/H4EAD requests filed under Premium Processing.  In order to complete the review of the main H-1B petitions in the required 15 days, a decision on the accompanying H-4 and H-4 EAD requests may be delayed.

Remember, the Premium Processing program only guarantees that USCIS will review the H-1B petition within 15 days; USCIS is never required to also decide the family’s applications in that same amount of time.  USCIS has long advised that the quick adjudication of the extra applications from the family  was being done only as a convenience to the applicant as time allowed.



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            IMMIGRATION LAW

H1Bs: Get your FULL Six Years thru Recapturing

There is an important difference between six calendar years of H1B and six years in H1B status.

After being granted H1B status, any full day you spend outside of the U.S. will NOT be counted as part of your initial six year limit of H1B time.  Although this seems simple, employers and lawyers continue to struggle with the concept. 

The process of adding time spent outside of the US to an H1B extension is called "recapturing".

Last week, I reviewed two more cases where the H1B workers were already in their 7th and 8th year of H1B, yet they never received - or ever requested - the unused H1B time from their first six years.  One of them had forfeited over four months of H time they could have added to their 7th year extension.

Not everyone can benefit from recapturing H1B time.  If you changed status to H1B and received a full three year initial grant, then received a three year extension, all while never leaving the US, there is no time available to be recaptured.  In this case, you have spent a full six years in the US as an H1B.  In some other cases, the small amount of time available to be recaptured is not worth the trouble if you are not eligible for an AC21 extension beyond just six years anyway.

Yet, in other situations, especially when the Alien Labor Certification (ALC) is filed during the 6th year, recapturing time can be a life-saver. 

Consider this scenario.  ALC filed March 15, 2014 and is on appeal.  Meanwhile, your 6th calendar year of H1B expires January 1, 2015.  One of the ways you can extend H1B status beyond the initial six years is if your Alien Labor Certification has been pending more than one year (AC21 Sec.106), but that will not be until March 15, 2015, leaving a 73 day gap between H1B expiration (January 1, 2015) and eligibility for a one-year H1B extension (March 15, 2015).

There are many possible solutions for this problem.  One answer would be to leave the US on or before your H1B expires, then return on a new, 1-year petition with a start date of March 15, 2015.  Of course, that would require missing around 2 ½ months of work and enduring the delays and uncertainties of consular processing for a new H1B visa.  Or, you can consider recapturing time to fill that 73 day gap.

In this scenario, if your first H1B petition had a validity date of January 2, 2009, but you did not enter the US as an H1B until January 13, 2009, you can recapture 11 days of unused H1B time (you cannot recapture the day you arrived or departed the US). 

Also, if you have taken four 2-week vacations home during your first five years as an H1B, this may be another 44 days you spent out of the US.  Combining this 44 days with the 11 days for the late entry, we now have 55 days of H1B time available to claim, but this still leaves us 18 days short of the 73 days needed to cover the gap between the H1B expiration and 1-year extension eligibility.

The most convenient course of action now is to take one or more trips outside of the US that total at least 18 full days.  Go home, hang out in Toronto or Cancun, it doesn't matter where as long as it is not in the United States.  When you return using your current visa, have your H1B extension filed for both the 73 recaptured days PLUS the 1-year AC21 extension.  You no longer have a gap in your H1B time.  Your H1B extension will now be from January 2, 2015, to March 15, 2016.

Here are a few pointers for recapturing time.

--Do not expect USCIS to do the computations for you.  USCIS internal guidance says to not honor requests to recapture time unless all of the evidence is submitted with the request.

--Keep track of your trip evidence.  Passport stamps are used extensively, but boarding passes and itinerary printouts are often necessary to prove when you departed the United States.

--Full copies of all passports used are not necessary with normal H1B extensions, but are required if requesting recapture time.

--The possible scenarios and solutions are endless if you are creative, but the best solutions incorporate the use of your current visa, thus avoiding the need to consular process for a new visa before returning.

--A single H1B extension can include time from several different immigration provisions.  As long as the requested time does not exceed three years, you can combine all the time remaining in your current H1B, PLUS any time you wish to recapture, PLUS any AC21 extension time for which you may be eligible.


One of the problems highlighted in the proposed H4 EAD rule is how to prove an H1B is actually beginning their 1 year extension under AC21 section 106(a).  In both petitions I reviewed last week, the employer asked only for 1-year extensions under AC21, but since the employees' time out of the US was never recaptured, the workers never completed a full six years of H1B before they were in their "7th year" AC21 extension!  In the proposed rule, USCIS specifically opened the floor for suggestions on how to deal with the issue of evidence.  Unfortunately, it is difficult to wade through the river of non-substantive comments to review any valid suggestions.

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H-1B Workers: Read Your LCA!

With every H1B extension or initial petition filed, the employer is required to submit to USCIS a Labor Condition Application (LCA) that has been approved by the U.S. Department of Labor (DOL).  The LCA is a very important document and contains your employer's promises regarding your pay and some job conditions.

Did you receive a copy of the LCA?

Your employer is absolutely required by law to give you a copy of the LCA that covers the time period of the H1B petition.  The copy can be given when the extension is filed with USCIS, or, if it is your first petition, no later then the first day of employment.  There are no exceptions to this major fraud prevention requirement - you must be given a copy of the LCA to ensure you are being paid at least the wage your employer promised the government they would pay you.

You may receive the LCA copy by itself, but often the LCA will be included in your copy of the I-129 filing packet.  No law requires you be given a copy of the entire I-129 filing packet, but sending a copy to the worker (with some private information about the employer removed) is just part of good customer service provided by some law firms.  Do not confuse the filing receipt or approval notice with the I-129 filing packet.  Along with the I-129 and LCA, the filing packet contains all the supporting documents and often an attorney "true copy" certification.  Just like with the LCA, protect yourselves by always review the filing packet for errors and misstatements.

Be Concerned Mainly with Wage Information

Do not be too concerned with the exact working hours, unless it effects the wages you should be receiving.  The form does not apply well to all the different types of positions and shifts worked, so accuracy in this area is not usually an issue as long as you are making the same (or higher) wage and under the same working conditions as U.S. workers in the same or similar job position.  Usually, the workplace address on the LCA is not a crucial fact as long as the correct address is in the same metropolitan statistical area.  Also ignore any variations of the validity end date of the LCA when the date is later than the time requested in the H1B petition.  There are times when a longer end date is requested then will be on the H1B petition.

Are you receiving the Correct Wage?

You can be paid more than the wage shown on the LCA, but not less.  With very few exceptions, such as employee-requested unpaid leaves of absence, you cannot be paid less than the amount show on the LCA.

Filing Complaints with the Department of Labor
 
It is easy to file a complaint against an employer over LCA violations, but you may wish to consult with an attorney before taking such actions to be sure you are correct in your belief that you are being underpaid. 

If you have not been receiving the LCA copies, you can file a complaint, although a simple reminder of the requirement may be sufficient for you to obtain past and future copies.  If you are given "late" copies of LCAs, review them carefully.  I can understand how some employers filing H1Bs on their own may have overlooked this requirement.  However, it the H1B was filed by an attorney, I would be a little suspicious as to why this very basic and simple requirement was not met.

Complaints are filed with the Department of Labor using the easy to complete form WH-4. The form must be sent to the DOL Wage & Hour Division office that has jurisdiction over your work location.  An interactive map giving the correct address for the complaint can be found on the DOL website. 

With few exceptions, complaints must be made within one year of the violation.


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