Eligible H-4 Spouses:
Not every H-4 spouse will be covered considering the core intent of the proposed rule. The H-4 spouses who will be covered by this initiative will be those
(1) whose H-1B husband or wife has already commenced permanent residence process after prolonged period of stay in the U.S. in a H-1B status and eligible for 7th year H-1B extension beyond the H-1B six-year limit under section 106 of the AC 21 or
(2) whose H-1B husband or wife has filed and obtained I-140 petition either through or without labor certification process but unable to file I-485 applications because of the immigrant visa number backlog for the category in the Visa Bulletin and eligible for H-1B extension in three-year increments indefinitely pending their priority current in the Visa Bulletin or
(3) who is a following-to-join spouse of the H-1B spouse who has already filed EB-485 but because of the visa number retrogression, he or she is unable to file I-485 application, and for the reasons, they are eligible for H-1B and H-4 visa status extensions in three-year increments indefinitely pending the visa number availability in the Visa Bulletin pursuant to section 104[c] of AC 21 Act. Accordingly, there are two things they should keep in mind. If the H-4 spouse wants to prove his or her eligibility for the EAD, they will have to prove that the H-1B husband is working in a H-1B nonimmigrant status and no other nonimmigrant visa nor EAD.
Thus this H-4 EAD rule is likely to encourage H-1B spouse waiting for I-485 applications to keep H-1B status rather than working on EAD. Secondly, the H-1B principal spouse must prove that he or she is suffering from the visa number regression or delays in labor certification or I-140 or EB-485 application by the agencies.
Continue To Part 3: http://topimmigrationnews.blogspot.com/2013/01/updated-ead-for-h4-visa-holders-part-3.html