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On May 26, the USCIS will begin accepting applications for form I-765 Employment Authorization Documents (EADs) submitted by certain H-4 spouses of H-1B professionals.
What follows is a list of answers to 10 of the most frequently asked questions about this new policy:
1. Which H-4 spouses are eligible for EADs?
H-4 spouses of H-1B professionals with approved I-140 visa petitions or who is the beneficiary of a PERM application or an I-140 which was filed at least 365 days before the expiration of his or her 6-year limitation of stay as an H-1B nonimmigrant. If the PERM application was approved, the I-140 must have been filed with the USCIS within 180 days.
2. What forms do I need to file?
File form I-765 with proof of your H-4 status, show that your spouse is in H-1B status and has an approved I-140 or that a PERM application or I-140 was filed over 1 year before the ending of the 6th year of the H-1B. The filing fee is $380. If you are filing for an H-4 extension, you may apply for an EAD concurrently.
3. How long will my EAD be valid?
Be sure to request that your EAD last for as long as your H-4 status is valid.
4. Are there any limits on my employment?
No, you can work in any type of lawful employment. You can even work for multiple employers if you wish. You can change jobs at any time. You can start your own business. You can stop working at any time. You can work as a salaried employee, an hourly employee or a contractor.
5. What if my spouse and I are both in H-1B status? Can I change to H-4 status and request an EAD at the same time?
Yes, as long as you meet the eligibility requirements discussed in Question #1 above. Your employer will probably be delighted not to have to submit and pay for an H-1B extension for you.
6. How early am I allowed to submit my H-4 extension and EAD application?
You can concurrently submit your H-4 extension and EAD application 6 months prior to the expiration date of your H-4 status.
7. How long will it take for me to receive an EAD?
An EAD should be issued within 90 days. However, if you are applying for an H-4 and an EAD simultaneously, the waiting time will be longer.
8. What if my spouse no longer works for the employer who filed his/her approved I-140?
This fact alone should not prevent you from obtaining an EAD. A 2000 law commonly referred to as AC-21 permits a person in H-1B status with an approved I-140 and a pending I-485 to change employers after his/her I-485 has been pending for 180 days or more as long as his/her new job is in the same or a similar occupation. No new PERM or I-140 is required. However, even if this is not the case, you will still be permitted to obtain an EAD. Your spouse will be able to retain the old priority date, but his/her new employer may have to file a new PERM application and an I-140 visa petition.
9. Can I use premium processing to apply for an EAD? Can I file my application online? Is it possible for an H-4 child of a parent in H-1B status to apply for an EAD?
The answer is no to each of these questions.
10. Approximately how many H-4 spouses will be able to qualify for EADs?
The USCIS estimates up to 179,600 H-4 spouses will be eligible to apply for EADs during the first year of this program, and 55,000 in each subsequent year. The new program does not distinguish between cap-subject and cap-exempt H-1Bs.
Updated 05-26-2015 at 04:13 PM by CShusterman
"Startup America" immigration agenda.
It should be emphasized that each of these initiatives are still in the planning stage with no set date as to when they will become effective.
Quoting from the DHS announcement: "The initiatives described below will serve to make the United States more attractive to highly-skilled foreign students and workers, thereby improving the competitiveness of U.S. companies in the world market and stimulating U.S. job creation."
1. Work Authorization for H-4s
The government is proposing to grant work authorization to some H-4 spouses.
Currently, H-4 spouses cannot obtain work authorization until a few months after they apply for adjustment of status. Given the long wait in some of the employment-based categories, they are often prohibited from employment for several years.
In the future, they may qualify for work authorization after a PERM application is approved for the H-1B spouse, or when an I-140 is filed.
Stay tuned for details.
2. Work Authorization for H1-B1s and E-3s
Persons with H1-B1 visas (professionals admitted to the U.S. under Free Trade Agreements with Chile and Singapore) and E-3 visas (professionals who are citizens of Australia) are already allowed to work in the U.S.
Where the problem comes in is when they apply for an extension of stay. H-1B professionals with pending extension applications are permitted to keep working for 240 days while their extension applications are pending. H1-B1s and E-3s are not allowed to keep working in such circumstances for even 24 hours. Ridiculous!
DHS plans to level the playing field a bit, but the question is when?
3. STEM OPT Extensions
In 2008, the USCIS began permitting some foreign-born graduates of U.S. universities to extend their work permits (also known as Optional Practical Training or "OPT") for an additional 17 months if they fulfilled each of the following conditions:
Currently participating in a 12-month period of approved post-completion OPT;Successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement's Student and Exchange Visitor Program;Working for a U.S. employer in a job directly related to the student's major area of study;Working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration
Services' E-Verify program; and
Properly maintaining F-1 status.
Now, the DHS plans to expand the program slightly. While the present program is limited to students whose most recent degree is in a STEM field, a past degree will soon suffice (e.g., an MBA with a B.S. in Computer Science). Also, DHS plans to expand the STEM Designated Degree Program List.
In a related proposal, F-2 spouses of foreign-born students will be permitted to enroll part-time in academic courses. The number of Designated School Officials will also be increased.
4. Outstanding Professors and Researchers
Currently, to be considered an outstanding professor or researcher for purposes of qualifying for permanent residence, the person must meet 2 of 6 criteria.
Comparable evidence is not accepted in this category although it is in the Extraordinary Ability category, and the USCIS has recently begun to issue an increased volume of requests for evidence and denials in this category.
Again, the DHS plans to level the playing field by allowing comparable evidence to be accepted for Outstanding Professors and Researchers.
5. Entrepreneurs in Residence Program
On February 22, USCIS officials will meet with academic, business and government leaders. The aim of this program is to streamline procedures for deciding temporary benefit applications commonly utilized by foreign-born entrepreneurs.
In our view, these are steps, perhaps baby steps, in the right direction. How significant these changes will be and when they will be implemented remains to be seen.
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Updated 12-02-2013 at 02:31 PM by CShusterman