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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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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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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EB-2/EB-3: “How Long Must I Work for this Company?”

I recently saw this issue raised on an attorney email list.  The question is asked frequently and anyone who gets permanent residence based on an employer petition should understand this concept. 

There is no exact number of days/months/years that an Employment-based immigrant must work for the petitioning employer.  The answer is a combination of your initial intent and any circumstances that have changed since becoming a permanent resident.

On the day you become a Permanent Resident, you and your employer are agreeing to establish a "permanent" employment relationship.

It must be your intent on that day to remain with the petitioning company for the foreseeable future. 

 

You must not already be planning to quit in the near future.  If you do not have this “permanent” intent to continue working on the day you are granted residence,  USCIS may say you were not living up to your agreement that allowed you to become a permanent resident.  Past employment with this same company does not count.  You may have worked for them for many years as an H-1B or L-1, but it is your intent when granted residence that matters. 

Of course, you should also always keep in mind that your employer has expended considerable time and effort towards your desire to become a Permanent Resident, and they are relying on your promise to work for them in the future.  If USCIS later finds that this was not your intent, your Permanent Resident status can be removed. 

However, “permanent” does not mean forever.  Should an event occur after you become a Permanent Resident that would commonly cause a worker to change employers, such as a substantially better job offer, spouse relocation or unbearable working conditions, you can leave your position.  But if you do leave your job within the first two years, I strongly recommend you document the reasons that led to your departure and collect any evidence that may be available showing that the event causing you to terminate employment occurred after you received Permanent Residence.  This evidence will be very useful should you later need to defend against an immigration fraud allegation many year after you left employment.

These cases usually after an employer complains to USCIS about an employee quitting, or when a USCIS officer questions the short employment history with the petitioning employer when applying for U.S. Citizenship.

Although somewhat uncommon, USCIS will take action if they believe they can prove fraud was committed.  If discovered within five years of the grant of Permanent Residence, USCIS may directly remove residence through Rescission proceedings.  If more than five years has elapsed, the government is required to place the worker in Removal (deportation) proceedings.

It is much better to understand this requirement at the beginning of your Permanent Residence than to be one of the unlucky ones who learn these rules in removal proceedings!

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U.S. Embassy Visit – Manila, Philippines

On March 13, I had the privilege of touring portions of the U.S. Embassy in Manila.  It is unfortunate that the embassy grounds are not normally open for tours.  The property, built on land reclaimed from Manila Bay in the 1930s, is the site of many historical events.

In addition to the grounds and chancery building, an hour was spent in the new Annex building which houses a variety of consular services, including visa issuance.  Opened in 2011, the Annex has over 99 service windows and provides a clean and comfortable waiting area capable of seating over 500 applicants.  There is even a children’s play area (designed and supported by embassy staff).  Obviously, a great improvement over the old visa complex.

Part of the tour included a simulated walkthrough of the entire visa issuance process, starting with entry into the compound and finishing at the last window where a decision is made.  Whenever I have the opportunity to visit an embassy, alone or with a client, I come away with a better understanding of the visa applicant experience.

And on this trip, I also came away with a colorful hat!

 

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EB3-Philippines Retrogression

Beginning May 1st, the cutoff date for Employment-based 3rd preference (EB-3 Philippines) will be rolled back to July 1, 2007 – a substantial set back from the April cutoff date of October 1, 2014.  This retrogression of cutoff dates means that beginning on May 1st, immigrant visas will only be available to persons with a priority date earlier than July 1, 2007.  The period of retrogression is expected to last through the summer, and possibly very much longer.

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

For anyone who has been watching the Visa Bulletin for the last year, retrogression comes as no surprise.  The cutoff date for EB-3 Philippines has advanced 29 months since November, and almost seven years in the last 12 months.

Effect of EB-3 Philippines Retrogression

If your priority date became current in the last year and you filed for permanent residence, 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 authorization.  Having a Permanent Residence application pending is usually much better than continually renewing your H-1B/H-4s.  Also, for those whose application for residence are still pending, do not be too disappointed by this set back.  Remember, it was the exceptionally rapid cut off date advancement that gave you the opportunity to file early for Permanent Residence in the first place.

If your priority date is earlier than October 1, 2014, and you have not filed for Permanent Residence, file quickly.  Properly filed I-485s received by USCIS on or before April 30^th will still be accepted.

Unlike those applicants in the U.S. who already filed for Permanent Residence and are allowed to remain with work permission, retrogression is especially harsh for those waiting outside of the U.S. to consular process.  The rapid advancement of cutoff dates create a false belief that their wait for an immigrant visa will be short.  Unfortunately, that may not be the case.  For immigrant cases still at the National Visa Center, or cases yet to be started, the wait may now be lengthy.

 Special Actions by DOS and USCIS 

The Department of State and USCIS will sometimes take special actions when notified of a pending retrogression for a particular country.

The U.S. Embassy in Manila has already announced a plan to approve as many EB-3 cases as possible before May 1^st.  This includes allowing applicants with interview-ready cases to appear at the embassy without an appointment to try to finalize their immigrant visas.  The instructions for walk-in applicants, and other useful information, can be found in this press release. 

USCIS has also been known to sometimes give special treatment to certain Permanent Resident cases prior to a retrogression.  When workloads permit, some older Philippine EB-3 cases in line to be processed may be given slight preference for final action.  Today I received a Filipino EB3-based Adjustment approval that was not expected for another one or two months.  I’m hoping this is a sign of more approvals to come in the next two weeks.  

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USCIS H-4 EAD Filing Instructions

5/22/15 UPDATE:  The text below is now also included in the 12-page I-765 Instruction Booklet, located at http://www.uscis.gov/i-765.


I normally only post original writings, but for this I will make an exception. 

Below are the USCIS H-4 EAD filing instructions that will later appear in, “Instructions for I-765, Application for Employment Authorization”.

Although USCIS has not formally published these instructions or the new I-765 to be used for H4 EADs, in a few weeks those items will be found at www.uscis.gov/i-765.

Excerpt from future I-765 Instructions for H-4 EAD:

G. Spouse of an H-1B Nonimmigrant--(c)(26). File Form I-765 along with documentation of your current H-4 admission or extension of stay.  You must also submit documentation establishing either that the H-1B principal has an approved Immigrant Petition for Alien Worker (Form I-140), or that your current H-4 admission or extension of stay was approved pursuant to the principal H-1B nonimmigrant’s admission or extension of stay based on sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21).  For your convenience, you may file Form I-765 with Form I-539, Application to Extend/Change Nonimmigrant Status.  However, USCIS will not process Form I-765 (except filing fees), until after USCIS has adjudicated your Form I-539.  You may also file Form I-765 at the same time as Form I-539 and Form I-129, Petition for a Nonimmigrant Worker.  The 90-day period for adjudicating Applications for Employment Authorization filed together with Form I-539 does not begin until USCIS has determined whether you are eligible for the underlying H-4 nonimmigrant status.  Please see the USCIS Web site at www.uscis.gov/I-765 for the most current information on where to file this benefit request. 

1. Proof of Your Status.  You must submit a copy of your current Form I-797 approval notice for Form I-539 or Form I-94 showing your admission as an H-4 nonimmigrant or your most recent approved extension of stay; and 

2.  Proof of Relationship to the Principal H-1B.  You must submit a copy of the marriage certificate for you and the principal H-1B nonimmigrant. 

3.  Basis for Work Authorization.  Acceptable documentation includes: 

a. Approved Form I-140.  Submit evidence that the H-1B principal is the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140).  You may show this by submitting a copy of the H-1B principal’s Form I-797 approval notice for Form I-140; or 

b. H-1B Principal Received AC21 106(a) and (b) Extension.  Submit evidence that the principal H-1B nonimmigrant has received an extension of stay under AC21 106(a) and (b). You may show this by submitting copies of the H-1B principal’s passports, prior Forms I-94, and current and prior Forms I-797 for Form I-129.  In addition, please submit evidence to establish one of the following bases for the H-1B extension of stay: 

Based on Filing of a Permanent Labor Certification Application.  Submit evidence that the H-1B principal is the beneficiary of a Permanent Labor Certification Application that was filed at least 365 days prior to the expiration of the six-year limitation of stay.  You may show this by submitting a copy of a print out from the Department of Labor’s (DOL’s) Web site or other correspondence from DOL showing the status of the H-1B principal’s Permanent Labor Certification Application. If DOL certified the Permanent Labor Certification, you must also submit a copy of Form I-797 Notice of Receipt for Form I-140 establishing that the Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification; or 

Based on a Pending Form I-140.  If the preference category sought for the principal H-1B spouse does not require a Permanent Labor Certification Application with DOL, submit evidence that the H-1B principal’s Form I-140 was filed at least 365 days prior to the expiration of the six-year limitation of stay and remains pending. You may show this by submitting a copy of the Form I-797 Notice of Receipt for Form I-140. 

c.  Examples of Secondary Evidence.  If you do not have any evidence relating to the H-1B principal as requested in a or b above, you may ask USCIS to consider secondary evidence in support of your application for work authorization as an H-4 spouse.  For example, such information may include the receipt number of the H-1B principal’s most current Form I-129 extension of stay or the receipt number of the H-1B principal’s approved Form I-140 petition.  Failure to provide this information about the H-1B principal may result in a delay in the adjudication or denial of your application for employment authorization.

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H-4 EAD Your Personal Q&As Wednesday, April 1, 2015

Updated December 30, 2015

The comments on this post were from a live discussion on H-4 EAD issues held on April 1, 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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Blog Comments open on April 1st for questions until 1:00 p.m. CDT.

For those who still may have questions about H-4 EAD processing or eligibility, I will be happy to answer any questions based on the information we now have available.

All questions and my answers will be posted as comments to this posting – no questions will be taken by direct email – so everyone will see all the conversations.

The usual disclaimer:  Any answers to comments are based only on the information presented and in no way should be taken as a substitute for a full consultation with a qualified attorney.  Any comments or answers to comments does not create an attorney-client relationship and the presence of additional facts may lead to starkly different advice.

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Waiting for USCIS H-4 EAD FAQs

We have the Final H4 EAD rule, but we are still left with many questions. 

For the simple case of an H-4 whose spouse has an approved I-140, most questions are answered and everything is fairly simple.  For other scenarios, the rule is vague.

 Here are a some of the H-4 EAD issues awaiting clarification:

--EAD validity after I-140 withdrawal

--H-4 EAD eligibility after I-140 revocation

--Effect of travel on pending H-4 EAD requests

--Ability to file from outside of the country

--Start date of simultaneously filed I-765s

--Gaps in employment authorization in change of status cases

--The big question - §106(a) duration parameters (discussed in detail here) 

--Need for multiple 765 filings when capturing both current and future eligibility?

USCIS has been presented with a lengthy list of H-4 EAD issues for their consideration prior to the publication of H-4 EAD FAQs, anticipated in late April or early May.

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Expected Overhaul of Philippine Immigration Law

After years of planning, there has now been substantial progress towards reforming the immigration laws of The Philippines.  A draft immigration reform bill was approved by the House of Representatives Justice Committee on March 9 before being sent to the Appropriations Committee for review prior to being called up in a House plenary session. 

Included among the many proposed changes are provisions promoting investment and streamlining the immigration processes.

                                Pictured:  Hon. Feliciano Belmonte, Jr,; Attorney Jim Austin

The day after the bill was passed out of committee, it was discussed at a meeting between visiting U.S. immigration law attorneys and the House Justice Committee.  Also discussed during the meeting, hosted and led by House Speaker Feliciano Belmonte, Jr., was the progress made towards resolving several other issues hindering foreign investment in the country. It was a very informative meeting.


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Fact Check: Jeane Napoles' Use of U.S. Property for Citizenship Application?

I have been asked to review statements made in the Philippine media that touched on U.S. immigration law.

Here is the back story.  Jeane Napoles is the daughter of Janet Lim Napoles.  In what has become known in the Philippines as the “pork barrel scam”, the elder Napoles is accused of being the organizer behind a scheme that may have criminally diverted millions of government dollars originally intended to fund various projects throughout the country.  During the investigation it was learned that her daughter, Jeane, is the registered owner of multiple valuable properties, including a luxury Ritz-Carlton condominium in Los Angeles. Jeane Napoles has been charged by the [Philippine] Bureau of Internal Revenue with tax evasion.

Jeane Napoles’ defense to the tax charges, as stated by her attorney, is that the properties were put in her name to meet a requirement for U.S. Citizenship.  That brings us to U.S. immigration law.  I have been asked to judge the validity of this statement.

First, to ensure this is just not a misquote from a single reporter, we review multiple media sources.

“...Jeane acquired the properties from her mother because she was applying for a US citizenship.”  [ABS-CBN News]

“She said her mother Janet had said she placed the properties under Jeane’s name because the fashion designer needs to show she has properties in her bid for US citizenship.”  [inquirer.net]

"Pinangalan namin sa kanya iyan kasi at that time she was applying for a US citizenship. Alam n'yo naman kung mag-apply ka ng citizenship kailangan mo ipakita na meron kang mga holdings, may properties ka,...". [gmanetwork.com]

The essence of the statement remains consistent across multiple news sources and both languages.

So, the question:  “Is property ownership ever a requirement for U.S. Citizenship?”

Answer:  No.  Property ownership is never a requirement for U.S. Citizenship.  Residing in the U.S. over a period of time is a requirement In most - but not all - Citizenship cases, yet there is no requirement that any real property be owned by the applicant.  Ever.

That was easy to answer, but the real question remain as to the source of the money.  I expect courts in The Philippines to be wrestling with that question for years to come.


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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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