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H4 Regulation

Discussion in 'H4 employment authorization' started by dreamwalker, Nov 21, 2014.

  1. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The decision in Texas, regarding DACA and DAPA has absolutely nothing to do with the H4 EAD rule.
     
  2. cskpudi

    cskpudi New Member

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    Thanks Ron for your quick reply.
     
  3. trademark

    trademark New Member

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    Ron, can you please share expert advice on H4EAD eligibility when the H1 applicant changes employment and old employer cancels I-140
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    We need to see what the rule says first.
     
  5. Kamakazee

    Kamakazee Super Moderator

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    We asked that at the OMB meeting last Wednesday. They could not tell us as it is part of the final rule and they do not discuss contents of the rule. But USCIS was on the line and we asked for a teleconference to go over queries like these, specially eligibility questions, when the rule comes out. USCIS has agreed to do it, so attending that will be helpful and all these questions will probably be answered.

    Of course, I am sure a lot will be clearer once the final rule comes out.
     
  6. nssvss

    nssvss New Member

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    http://www.uscis.gov/news/dhs-exten...g-employment-based-lawful-permanent-residence

    It is official!!

    DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence
    Release Date: February 24, 2015
    WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

    Finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

    “Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” Rodríguez said. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

    Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

    • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
    • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.
    DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

    Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

    USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

    For more information on USCIS and its programs or about this rule and filing procedures, please visit uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blogThe Beacon.
     
  7. speedracer

    speedracer Guru

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    Thank you for posting it, I went to the USCIS link and its probably crashed ..
    its good for lot of people .. no anxiety anymore...
     
  8. nssvss

    nssvss New Member

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    Thanks. I was one of the few lucky ones to see this on the site.

    They will start taking in applications on May 26th. Golden date!
     
  9. yubeie

    yubeie Member

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    If the primary H1B beneficiary moves from Employer A (I140 Approved) to Employer B ( would have to restart PERM again) after 6yrs,
    would the H4 beneficiary be eligible for EAD? please clarify.
     
  10. djayash

    djayash Guru

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    Ron,

    Just to clarify, in order to be eligible for H4 EAD, the H1B holder should have an approved I-140 and his/her H-1B should be beyond six yr extension. Is that correct?
     
  11. Jonty Rhodes

    Jonty Rhodes Active Member

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    It's OR not AND......Clearly states at the end of first condition....
     
  12. yubeie

    yubeie Member

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    But can that mean the H1B beneficiary could restarting his PERM, which means his old I140 can no longer be valid? If so, would the H4 beneficiary still qualify for an EAD..That is unclear :-(
     
  13. trademark

    trademark New Member

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    Gurus, Can someone please explain the difference between 104(c) and { 106(a) and 106(b) }. In cases when an someone changes to a new employer and the old employer withdraws I-140, can 106(the H1 spouse be eligible in such cases? The assumption that i am making is that when someone changes employment beyond 6 years based on approved I-140, going to use 104(c) of AC21 and NOT 106(a) and (b). From what I read, 106(a) will be used for 7th year extension with approved labor or beyond 365 days after labor filing.

    The eligibility says approved I-140 or 106(a) ???
     
  14. yubeie

    yubeie Member

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    Per my understanding, 104(c) allows h1b extension increments in 3years, while 106(a) and (b) allow h1b extension increment by only 1 year.
    After reading through the H4 EAD rule details, it unclear what happens when H1B beneficiary tries to move between jobs, because neither of the clauses would applicable.
     
  15. asdk

    asdk New Member

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    No, upon reading its very clear that it does not specify anything about being under same or different employer.

    Besides the 140 approvals, it does state that a h1b beneficiary with over 6 year limit is also eligible.

    ---This is based on what i understand only
     
  16. trademark

    trademark New Member

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    The final rule document says this:

    Another commenter asked if H-4 dependent spouses of H-1B nonimmigrants who have extended their stay under section 104(c) of AC21 would be eligible for work 22 authorization. DHS confirms that H-4 dependent spouses of H-1B nonimmigrants who have extended their stay under section 104(c) of AC21 are eligible for employment authorization under this rule. Section 104(c) of AC21 applies to a subset of H-1B nonimmigrants who are the principal beneficiaries of approved Form I-140 petitions.8 Because this rule provides eligibility for employment authorization to H-4 dependent spouses of all H-1B nonimmigrants who are the principal beneficiaries of approved Form I-140 petitions, it captures the section 104(c) subset. DHS has thus determined that it is unnecessary to include section 104(c) of AC21 as a separate basis for employment authorization eligibility in this rule.

    I understand that 104(c) is also covered and H4 spouses will be eligible even if H1 transfer with approved I-140 beyond 6 years under 104(c) and old employer withdraws I-140. Correct me if I am missing anything
     
  17. yubeie

    yubeie Member

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  18. DonDraper

    DonDraper Guru

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    Ron,

    Does this mean the spouse on EAD can start her own company or is this just limited to the ability to work for a company
     
  19. dhakkan

    dhakkan Senior Member

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    Thanks yubeie it's crystal clear in that rule. So basically, H4 dependents of 'employer loyal' spouses who wait out for a GC for 10-15 years or eternity, will get this benefit. The second category is people who hop employers on approved 140, but in their cases dependents will have to wait out or get PENALIZED and remain out of work until 140 gets approved, & then H1 is extended again based on that 140.

    Lag gayi.
     
  20. yubeie

    yubeie Member

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    exactly! I somehow feel (I absolutely pray that I should be wrong), that EAD for I-140 is a not going to happen based on this information.
     

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