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