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H-4 EAD

Home/H-4 EAD

New Rules Establish Automatic Employment Authorization based on Pending EAD Renewal Application

By | 2017-05-20T21:46:58+00:00 February 25th, 2017|Articles, H-4 EAD, I-485, News, News Alert|

As part of a set of rule changes, collectively called “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” (see our full analysis) and effective as of January 17, 2017, USCIS has made some significant and welcome changes to the way it treats work authorization document (EAD) renewals and allows for automatic work authorization based on a pending EAD renewal application in certain cases. (more…)

President-elect Trump and Immigration: Initial Thoughts

By | 2017-05-20T21:47:03+00:00 November 11th, 2016|Articles, citizenship, DACA, Employers, H-1B, H-4 EAD, Immigration Reform, News Alert, Students, TN|

During the election campaign, President-elect Trump put immigration at the center of his agenda and platform and made a commitment to the voters to take immediate steps relating to immigration upon taking office on January 20, 2017.   There are certain immigration-related steps that can be done immediately upon taking office, by executive action, and there are certain steps which require congressional approval. Our office seeks to provide our initial thoughts on what immigration-related changes we may expect during the Trump presidency. (more…)

Is It Better to Work Using H-4 EAD or H-1B?

By | 2017-05-20T21:47:08+00:00 December 10th, 2015|Articles, H-1B, H-4 EAD, News|

Since the H-4 EAD rule became effective in May 2015, our office has assisted many eligible H-4 spouses secure work authorization under the H-4 EAD program. We continue to applaud USCIS’s efforts to allow certain H-4 spouses to apply for and obtain work authorization. In many cases, however, the eligible spouse may already have another type of work authorization, including H-1B and we are often asked whether it is better to work using H-4 EAD or using H-1B. The answer is very much case specific, but we hope to provide some pros and cons to both alternatives. (more…)

17-Month STEM OPT Rule Vacated by District Court; Effective Date February 12, 2016

By | 2017-05-20T21:47:10+00:00 August 13th, 2015|Articles, F-1, H-4 EAD, News, Students|

In an opinion dated August 12, 2015, the U.S. District Court for the District of Columbia vacated the Department of Homeland Security’s 2008 rule which extended the post-graduation optional practical training (OPT) by 17 months for eligible STEM students on F-1 visas.   The rationale was that DHS did not follow the normal rulemaking process which includes public comment period.   The court, however, ordered that the rule remain valid until February 12, 2016 in order to avoid substantial hardship to employers and F-1 STEM OPT workers and to allow DHS time to engage in a proper notice-and-comment rulemaking process. (more…)

USCIS: H-1B Premium Processing Available Again Effective Immediately

By | 2017-05-20T21:47:10+00:00 July 13th, 2015|Articles, H-1B, H-4 EAD, News|

USCIS has just announced that effective today, July 13, 2017, they are resuming accepting Form I-907 premium processing service requests for all H-1B petitions.     Previously, in mid-May, USCIS had announced that they are suspending the premium processing service for certain H-1B extension or transfer petitions until July 27, 2015 and we are glad to see that USCIS has been able to resume the premium processing service two weeks earlier than planned.

Background of the H-1B Premium Processing Suspension

The premium processing service for certain H-1B petitions (those requesting extension of stay – most notably, H-1B extensions and H-1B transfers) was suspended between May 26, 2015 and July 13, 2015 in order to accommodate the spike in the demand and number of H-4 Spouse EAD filings after the program opened on May 26th.

USCIS Statement on Resuming Premium Processing

This is USCIS’s statement from today,

We previously announced on May 19, 2015, that premium processing service would be suspended for Form I-129 H-1B extension of stay petitions from May 26, 2015 to July 27, 2015. The temporary suspension allowed us to implement the Employment Authorization for Certain H-4 Dependent Spouses final rule in a timely manner and begin adjudication of applications for employment authorization filed by H-4 nonimmigrants under the new regulation. Premium processing remained available for all other types of Form I-129 H-1B petitions during the temporary suspension.

We have closely monitored our workloads and have determined that we can resume premium processing service for H-1B extension of stay petitions on July 13, 2015.

Conclusion

We are delighted to see that the premium processing service has been reinstated.     While we applaud USCIS’s intent on making sufficient resources available to the H-4 Spouse EAD program, we have seen a number of cases where the suspension of the premium processing service had created (sometimes severely negative) consequences to both H-1B employers and employees.       We now anticipate a (hopefully, short) wave of H-1B upgrade filings.

Please do not hesitate to contact us if we can be of any help in connection with this unanticipated H-1B premium processing disruption and of service.    We are also assisting many H-4 Spouse EAD applicants and we are happy to offer information and a quote of our H-4 Spouse EAD filing services.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

USCIS Starts Issuing Approvals and Production of H-4 Spouse EAD Cards

By | 2017-05-20T21:47:11+00:00 June 17th, 2015|Articles, H-4 EAD, News|

One of the most frequent questions our office gets since and even before May 26, 2015 when the H-4 Spouse EAD filing window opened has been, “How long would it take to get the H-4 Spouse EAD approved?”    Because the H-4 Spouse EAD is a brand new program and especially due to the really high anticipated volume of H-4 Spouse EAD applications, we have not been able to provide a firm answer.    USCIS had indicated that their goal would be to issue EAD approvals within 90 days of filing.      But as our office is starting to receive H-4 Spouse EAD approvals and notifications of approvals, we are starting to get at least some preliminary idea of the processing times. (more…)

H-4 Spouse EAD Lawsuit Preliminary Injunction Denied – Filings to Continue as Planned

By | 2015-05-26T16:13:03+00:00 May 26th, 2015|Articles, H-4 EAD, News|

In late April our office reported on the lawsuit challenging the H-4 Spouse EAD program and we have been monitoring the case over the past few weeks and especially since Thursday of last week when there was a hearing here in Washington, DC on the merits of the plaintiff’s request for a preliminary injunction aiming to stop the H-4 Spouse EAD program.    We are happy to report that Judge Chutkan has denied the plaintiff’s motion for a preliminary injunction against the H-4 Spouse EAD program.

Judge Chutkan’s Opinion

The opinion finds that the plaintiffs have failed to show that they will suffer irreparable harm if the H-4 Spouse EAD rule will become into effect.     Judge Chutkan reasons that, “At this stage, it is entirely speculative whether any H-4 visa holders will ever apply for IT jobs at [the former employer of one of the plaintiffs], IT jobs in California (where the members of Save Jobs reside), or IT jobs at all.”   As a result, the judge concludes that the standard for irreparable harm during a preliminary injunction is not met.

Additionally, the judge discusses that the alleged losses are highly speculative and that they “are not great enough to warrant the extraordinary remedy of a preliminary injunction.”     Finally, the judge finds that there is no imminent harm from the H-4 Spouse EAD rule becoming effective because the H-4 EAD application process is likely to take months and then the H-4 EAD holders may take more time to look for and find jobs.

H-4 Spouse EAD Program Continues on Track (Even Though Lawsuit Remains)

Our office has monitored closely this lawsuit from the time it was filed and we had a fair amount of confidence that the preliminary injunction is unlikely to be granted.     We would like to caution that the fact that the preliminary injunction was denied does not make the lawsuit go away.   The lawsuit continues to remain pending and until the lawsuit is withdrawn or dismissed, the challenge against the H-4 Spouse EAD rule remains in place.

We will continue to provide information on this rule and the pending lawsuit  as soon as we have anything to share.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

USCIS Releases H-4 Spouse EAD Filing Process Clarifications and Guidance

By | 2017-05-20T21:47:13+00:00 May 20th, 2015|Articles, H-4 EAD, News|

On the eve of the H-4 Spouse EAD filing window (which opens on May 26, 2015), USCIS  has released a set of clarifications and guidance in connection with the H-4 Spouse EAD process.     Our office has been very active in the H-4 Spouse EAD process ever since the benefit was announced as a proposed rule in the summer of 2014 and we welcome USCIS’s providing guidance on a number of key issues.   Please see our separate article regarding eligibility rules and filing mechanics.

Four Outstanding Questions Answered (Mostly)

About a month ago, on April 23, we released a list of four major unanswered questions to USCIS in connection with the H-4 Spouse EAD process.   Specifically, we raised the question as to whether there would be concurrent H-4 status and H-4 EAD approval, whether there will be a way to deal with the “gap” between non-concurrent approval of H-4 status and H-4 EAD work authorization, whether H-4 EAD would apply for H-1B extensions beyond the sixth-year when part of the current H-1B/H-4 term is still within the initial sixth-year term and whether travel internationally during the time H-4 EAD remains pending would affect the process.

We now have answers to almost all of these questions and we appreciate USCIS’s efforts to provide clarifications.

Concurrently-Filed H-4 Change of Status and H-4 Spouse EAD Applications Will Not be Approved Concurrently

USCIS has confirmed that they would permit concurrent filing of H-4 status (change or extension) applications together with H-4 Spouse EAD applications.   In fact, it is now possible to file concurrently H-1B, H-4 and H-4 EAD applications.

However, USCIS is not expected to be able to adjudicate the H-4 EAD application concurrently with the H-4 (and H-1B, if applicable) change or extension of status applications.  USCIS has indicated that they would first adjudicate the underlying H-4 status application (together with any H-1B petition, if any) and only then they would turn to the concurrently-filed H-4 Spouse EAD application.    In this scenario, the 90-day EAD “clock” would not begin until a decision is made on the H-4 status application.

This suggests that there will likely be a significant work authorization gap between H-4 status approval and H-4 EAD approval.   USCIS, in their FAQ document, specifically clarify that the validity of the H-4 EAD will not be “backdated” from the H-4 status approval date and any employment before the H-4 EAD is approved will be considered unauthorized employment and violation of H-4 status.

These gaps in employment authorization are problematic for applicants who are switching from work-authorized status (such as H-1B, F-1 OPT/CPT and similar) to H-4 and are seeking continued work authorization.       We suggest very careful planning of any such H-4 status and H-4 EAD applications to avoid or minimize the period during which there is likely to be a gap in employment authorization.   One possible solution may be to try to file (significantly) ahead of time and request future starting date of the H-4 status and H-4 EAD.    Please contact us if we can analyze your case and provide options.

The H-4 Spouse EAD Will be Allowed When the Primary H-1B Spouse Is Extending Beyond the Sixth-Year Maximum But When Part of the New H-1B Term Includes Periods of the Initial Six-Year Term

We had raised this question last month and we are glad to see that USCIS addressed it.    USCIS have confirmed that in cases where the primary H-1B and the derivative H-4 period includes a portion of the initial six-year term plus time beyond the six-year term based on PERM or I-140 pending for more than 365 days under AC21 Sections 106(a) and (b), the H-4 EAD validity term will match the validity term of the H-4 status, including any period which is within the initial six-year term.

International Travel When an H-4 EAD Application Remains Pending Is Generally Permitted Without Having to Refile Another H-4 EAD Application After Return to the U.S. As Long as the H-4 EAD Was Filed When the H-4 Holder Was in the U.S.

USCIS has confirmed that the H-4 spouse must be in the U.S. at the time of filing to apply for the H-4 EAD – the reason is that the H-4 holder must be physically in the U.S. in order to provide evidence of H-4 status, which is a requirement.   A person who is outside of the U.S. does not have H-4 “status”.

USCIS has also confirmed that travel outside of the U.S. and reentry on H-4 status are permitted while the I-765 H-4 Spouse EAD application remains pending.   USCIS cautions, however, that H-4 spouses who have filed for EAD must meet all H-4 admission requirements, including having an H-4 visa stamp in their passports.     Additionally, H-4 Spouse EAD applicants who travel during the time their I-765 is pending should understand that if USCIS sends a request for information (request for evidence, RFE, or notice of intent to deny, NOID) on the case, they will need to ensure that the response is submitted timely (often within 30 or 84 days).

USCIS previously indicated that no Application Support Center (ASC) biometrics will be required as part of the H-4 Spouse EAD process.   The FAQ released today seems to contradict this by mentioning that travel while outside of the US may create “delays if

[USCIS will] need to reschedule your appointment at an [ASC].”     We still believe that USCIS will not require biometrics to be completed as part of the H-4 Spouse EAD process but we will seek a confirmation on this point and provide an answer as soon as we can.   Please sign up to our newsletter to get updates.

Finally, with respect to travel, USCIS has cautioned that concurrent H-4 status and H-4 EAD applicants should not travel while they wait for their H-4 status and H-4 EAD applications to be approved.   Traveling outside of the US while an application for status is pending is likely to cause this status application to be denied due to abandonment.      Denial of the H-4 status application will also cause denial of the concurrently-filed H-4 EAD application.

Revised Form I-765 and Instructions Still Pending

The revised Form I-765 and the accompanying filing instructions are still not released for public use.   We expect this to happen at any day now, and likely on May 26th.     The current version of the I-765 form should remain valid for H-4 Spouse EAD filings until a new version of the form is released (and then during the transition period which is to be announced as well).

Unrestricted H-4 EAD Employment

USICS has confirmed that the H-4 EAD, once approved, will allow unrestricted employment to the H-4 spouse.   This means that the H-4 spouse can take any job, regardless of the qualifications of the H-4 spouse and regardless of the requirements of the position.   The job can be temporary or permanent, part-time or full-time, or an independent contractor position.    Additionally, self-employment and starting, owning a business, including hiring other people are allowed.    Please see our dedicated article on the types of employment permitted on H-4 EAD.

However, H-4 EAD holders should understand that they are authorized to work only during the validity of their H-4 EAD card.    This makes it critical to keep track of the expiration dates and to file extensions well (4 months, or more) in advance to avoid gap in employment authorization.

H-4 EAD Is Not a Travel Document

USCIS, and our office, would also like to caution that the  H-4 EAD is not a travel document and H-4 EAD holders who travel outside of the U.S. would need to have a valid H-4 visa stamp in their passport and be otherwise eligible for H-4 admission into the U.S. in order to be able to travel and enter the U.S.

Conclusion

As we are getting closer to the May 26th H-4 Spouse EAD “opening day” we are hoping for smooth and clear H-4 EAD filing process, especially within the first days and weeks after May 26th.    USCIS has already announced that they are expecting a high number of H-4 EAD filings and they have suspended premium processing service for some H-1Bs to allow them to allocate more resources to the H-4 EAD process.

We will continue to provide information on this rule and answers to these questions as soon as we have anything to share.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

USCIS Temporarily Suspends Premium Processing of H-1B Extension of Stay Petitions

By | 2017-05-20T21:47:13+00:00 May 19th, 2015|Articles, H-1B, H-4 EAD, News|

USCIS has announced that effective May 26, 2015, they are temporarily suspending the premium processing for all H-1B extension of stay petitions for two months, or until July 27, 2015.     This surprising announcement comes in light of the anticipated heavy demand and number of filings for H-4 Spouse EAD when the filing window for this new work permit begins on May 26, 2015.

Premium Processing Not Available for New Filings of H-1B Extensions

During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.  USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.   Although USCIS has not specifically confirmed this in their announcement, USCIS is expected to continue to allow premium processing of H-1B petitions requesting initial terms of stay or consular processing.

Reasons for Temporarily Suspending H-1B Premium Processing

The rationale behind this two-month temporary suspension of the premium processing option for H-1B extension of stay petitions is the anticipated heavy demand and high number of H-4 Spouse EAD filings on and shortly after May 26th.    This is the earliest date when applications under the new H-4 Spouse EAD program can be filed and it is expected that there will be tens of thousands applications filed over the first weeks or months of eligibility.

Only H-1B Extension of Stay Applications Are Affected

We should highlight one more time that the temporary suspension of premium processing applies only to H-1B extension of stay petitions.    These types of petitions are expected to include H-1B extensions with the same employer or H-1B transfer petitions where an extension of stay is also being sought.

Petitions Not Affected.  H-1B petitions requesting change of status, H-1B amendments without extension of stay, petitions for L-1 (and other visa types eligible for premium processing) should remain unaffected with premium processing service available.

Why is USCIS Suspending Premium Processing on H-1B Extension of Stay and Not Other H-1B Cases?

While USCIS has not articulated their motives and rationale as to which types of H-1B petitions’ premium processing service is being suspended,  we think that USCIS made a calculated decision to minimize the impact of their decision to suspend premium processing.   The H-1B extension of stay application are, for the most part, cases where employment is authorized even while the H-1B petition (transfer or extension) is pending.    By suspending the premium processing  option for only this type of H-1B cases, we think USCIS wanted to minimize the impact of their decision.

For example, in H-1B extension situations, the relevant provisions of The American Competitiveness in the Twenty-First Century Act (AC21) allow employment for as long as the timely-filed H-1B extension petition is pending, even if the underlying  H-1B petition has expired (normally up to 240 days).   Similarly, in cases of timely-filed H-1B transfer and extension of stay petitions, the beneficiary is generally allowed to start working for the new employer upon receipt of the H-1B transfer petition.

Premium Processing Fee Refunds Will be Offered to Affected Cases

For H-1B premium processing cases filed prior to May 26, 2015, USCIS will refund the premium processing fee if USCIS is unable to act on the case within 15 calendar days of filing.     We expect that USCIS will reject the premium processing component of H-1B affected H-1B petitions during this period (assuming the premium processing fee is in the form of a separate filing fee check).

What Else May Be Affected?

Given this unexpected announcement and in the fact of really high number of H-4 Spouse EAD filings on or after May 26th, it is likely that the USCIS processing timelines across the board may increase, at least at USCIS Service Centers which are dealing with H-4 Spouse EAD applications.   For example, we expect receipt notices to take longer to be issued and mailed out and we expect processing times to generally increase.      We urge proper planning and early filing to avoid problems caused by any processing delays.   Contact us if we can assist in any way.

Conclusion

This extraordinary (and unexpected, at least to us) announcement suggests that USCIS is bracing for a very high rate of H-4 Spouse EAD filings next week after May 26th.    This also suggests that there may be wider delays and possible disruption of processing times/services by USCIS which may go beyond H-1B extension filings.   We urge H-1B employers who have filed or are planning to file H-1B petitions, including extensions or change of status applications, to plan carefully and consider the possibility that H-1B petition adjudication times would increase.

Similarly, H-1B workers who are seeking an extension in order to prepare for an H-4 Spouse EAD filing or perhaps to travel abroad for stamping are now likely to see increased processing times and non-availability of the premium processing service.

Please do not hesitate to contact us if we can be of any help in preparing for this unanticipated H-1B premium processing disruption of service.    We are also assisting many H-4 Spouse EAD applicants and we are happy to offer information and a quote of our H-4 Spouse EAD filing services.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

H-4 Spouse EAD Lawsuit Update: H-4 EAD Program Still on Track

By | 2015-04-30T12:04:22+00:00 April 30th, 2015|Articles, H-4 EAD, News|

Our office has been receiving a number of inquiries about a lawsuit challenging the H-4 Spouse EAD program as it is about to become effective on May 26th.    We have been monitoring this lawsuit and related developments very closely as our office is helping many H-4 Spouse EAD applicants and as of the time of this article, we believe that the H-4 EAD program will come into effect as planned on May 26th.

The Lawsuit

The lawsuit was filed last week by a group of U.S. high tech workers and seeks to block the H-4 Spouse EAD program.   The main claim in the lawsuit is that the U.S. Department of Homeland Security/USCIS do not have the authority to implement this type of a rule.     The lawsuit seeks to invalidate the H-4 Spouse EAD program.    The lawsuit is Save Jobs USA v. DHS, Civil Action No. 1:15-cv-615, United States District for District of Columbia, filed on April 23, 2015.

Immediate Impact of the H-4 EAD Lawsuit

Our attorneys, in consultation with colleagues in the field,  have reviewed and analyzed carefully the complaint and it appears that the arguments put forth in this lawsuit so far may not be sufficient for blocking of the H-4 EAD rule.   For example, the arguments in this lawsuit mirror arguments made in similar prior lawsuits challenging other similar regulations, for example, challenges to the 17-month OPT STEM work permit extension rule.    Obviously, the 17-month OPT STEM extension rule is still valid, years after its implementation.    At this time, there does not appear to be hearing scheduled on this lawsuit.

Rule Expected to Become Effective, as Planned

At this time, we do not believe that there is cause for panic among the significant numbers of H-4 EAD qualified applicants and we believe that the H-4  Spouse EAD rule will continue and will become effective as planned on May 26th.

We will continue to provide information on this rule and the pending lawsuit  as soon as we have anything to share.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.