Tuesday, January 8, 2013

Further Analysis Of EAD For H4 Visa Holder - Part 1

If you missed the original article (EAD For H4 Visa Holder), please click here: http://topimmigrationnews.blogspot.com/2013/01/updated-ead-for-h4-visa-holders-part-1.html

The full text of this proposed rule will not be available until the proposed rule is published in the federal register and seeks comments on the proposal. However, one sentence summary of this proposal gives a chance to peak into the scope of this proposal. The sentence is: "extending the availability of employment authorization to H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104(c) or 106(a).

This summary indicates that the eligible H-4 spouse must meet two requirements: Firstly H-1B principal alien must have started either labor certification process or labor certification waiver I-140 petition process. Secondly, in order to be qualified for this H-4 EAD benefits, one of two things must have happened before the H-4 spouse can apply for EAD.

If the H-1B principal alien seeks green card process through a labor certification waiver I-140 petition, the I-140 petition must have been approved. More importantly, close reading of the summary indicates that such I-140 approved H-1B principal alien MUST HAVE OBTAINED H-1B EXTENSION UNDER THE SECTION 104(c) of AC 21 law. In other words, approval of I-140 is not enough. The H-1B principal alien must have applied for and obtained approval of H-1B extension in three-year increments under AC 21 Section 104(c). 

A large number of those who are in H-1B and obtained a labor certification waived immigrant petitions are usually in early stage of H-1B period and may neglect to see this requirement and just obtain their H-1B extensions using H-1B six-year limit cap provision. In fact, these H-1B principals may be eligible for extension both under the regular H-1B cap period and three-year increments extension rule under AC 21 Section 104(c). 

Those who have chosen the first option and are in extended H-1B status may not be able to give the H-4 spouse EAD opportunity. When the proposed rule is published for comment, this is certainly one issue the consumers may have to bring up. The identical problem may be presented to those H-1B who started labor certification during their earlier H-1B stage and obtained I-140 approval based on the certified labor certification. 

Please click here for  Part 2: http://topimmigrationnews.blogspot.com/2013/01/further-analysis-of-ead-for-h4-visa_8.html

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