Tuesday, January 8, 2013

Further Analysis Of EAD For H4 Visa Holder - Part 2

If you missed part 1, please click here: http://topimmigrationnews.blogspot.com/2013/01/further-analysis-of-ead-for-h4-visa.html
These H-1Bs can apply for H-1B extension in three-year increments using Section 104(c) of AC 21 Act rather than seeking H-1B extension within their H-1B six-year limit. Of course, the three-year increment H-1B extension under Section 104(c) of AC 21 is available only when their priority date is not current at the time they file for such extension of H-1B status under AC 21.

This may mean that the rule may not restrict the benefit only to those H-4 spouse whose H-1B husband or wife has already extended H-1B based on Section 104(c) of AC 21. Rather, the benefit of H-4 spouse EAD should be made available inasmuch as the H-1B principal alien obtained I-140 approval but is unable to file I-485 application, or if the H-1B has already filed I-485, the H-1B is unable to obtain I-485 approval because of the regression of his or her visa cut-date. 

Such change will expand the EAD eligible H-4 spouses whose H-1B wife or husband has obtained I-140 approval but extended H-1B status using regular H-1B six-year limit rule rather than AC 21 Section 104(c) rule. The H-4 spouses of H-1B principal aliens who are still in the labor certification process or have just completed labor certification may not encounter such problem because they are using so-called 7th-year H-1B extension under Section 106 of AC 21 based on their record of filing labor certification before their H-1B reached the fifth-year in the six-year limit. 

Unlike the H-4 spouses of the 7th-year H-1B extensions under Section 106 of AC 21, those H-4 spouses who will have to rely on H-1B principal aliens who are maintaining extended H-1B status based on the regular six-year limit rule rather than the approved I-140 petition may potentially encounter a number of problems. 

Assuming that the H-4 spouse EAD rule requires that H-1B principal alien spouse must indeed have obtained H-1B extension based on Section 104(c) of AC 21, such H-4 spouses may learn that even if their H-1B spouses have obtained I-140 approval, priority date is not current, and have a valid extended H-1B status, H-4 spouse may not be eligible for obtain EAD. 

On top of the problem, assuming the employer is willing to file Section 104(c) H-1B extension for the principal alien, they will find another hurdle in the current rule that H-1B extension cannot be filed unless the current H-1B expires in six months or less. We will have to wait and see the full text of the proposed rule, but the USCIS may want to look into this potential problem in the finalization process.

Aside from the foregoing issue, the H-1B in I-140 stage must keep in mind current I-140 processing backlog - five months or longer. Assuming the H-4 EAD rule is finalized and implemented within this year, the employers of these I-140 petitions may seriously consider Premium Processing Request for I-140 to give the forthcoming H-4 EAD benefits to their H-1B employees. These H-1B professionals will consider such favor as an incentive and work harder to help employer's business prosper! 

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