H-4 EAD FAQs

Doing business on AOS EAD and on H-4 EAD/extension

Authored on: Fri, 03/26/2021 - 09:59

Question

1. I know, someone on EAD based on AOS waiting for I-485 approval must produce a valid job offer (Supplement J) during GC interview. Once the person update work status as EAD on Form I9, then the legal status will become EAD based on AOS. Can the person start a business/startup while on EAD with pending I-485? If yes, should the person notify USCIS about it? Does Form I9 need to submitted for starting/running a business/startup?

2. I know, someone on H4 EAD can he start a business? 
 

Answer

Video URL

Delay litigation/Mandamus

Authored on: Wed, 01/06/2021 - 07:03

Question

I am on H1B and we applied H1B renewal and H4 and H4 EAD for my wife which is pending , my wife company is ready to apply H1 (she already used her H1 before from 2013 to 2016) , just wondering what will happen to her H4/H4 EAD application which is pending to USCIS right now ? I am hearing lot about litigation for H4 , are you filing litigation if needed ? If so what is success rate ?

Answer

Watch the Video on this FAQ: Delay litigation/Mandamus

Video Transcript

Delay litigations are highly useful, but not in all cases. FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Priority date and original I-140 approval notice

Authored on: Tue, 12/15/2020 - 10:54

Question

I am currently on H1B visa (3rd year) and a few days back I got my I-140 approved in EB-2 category. I want to know if I can change my employer and retain my priority date.

H-1B no notification of termination, 60 days grace period, etc.,

Authored on: Tue, 08/18/2020 - 05:44

Question

My employer ended my employment due to COVID reasons on May 31, 2020 but I never received an official termination letter. Calculating the grace period depending on the assumed termination date mentioned above, I have till July 30 to find a new job. Should my new employer give me an offer or start the H1B transfer application before July 30? What happens if they fail to do so in time? Can I extend the grace period on the basis of having an offer in hand or maybe because of the pandemic? My final interviews with potential employers are being withdrawn because of the time restriction.

Answer

Watch the Video on this FAQ:

H-1B no notification of termination, 60 days grace period, etc.

Video Transcript

File a complaint against the employer with the Wage and Hour Division of the U.S. Department of Labor by filling up the form WH-4. You can also call them. 

The 60 day grace period works like this. The new employer must make sure that your H-1B transfer application is received by the USCIS within 60 days. So the LCA should be done, the package prepared and USCIS should receive your H-1B transfer within 60 days, otherwise you will be out of status and you will have to go outside the USA for visa stamping pandemic or no pandemic, also remember there is a proclamation that will stop you from coming back at least before December. Make sure you remain in status or at least file a B-2. FAQ in detail...

 

 

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H-4 EAD Issues

Authored on: Thu, 08/13/2020 - 04:21

Question

I am having H4-EAD,Can I start any business?

Answer

Watch the Video on this FAQ: H-4 EAD issues

Video Transcript

You can start a business, any business and 10 businesses if you want. The only issue is what if there is a gap in your EAD. You will not be able to run that business, somebody else should be able to do that for you. That's the only practical difficulty. Legally, there is no problem. You can do whatever you like. FAQ in detail...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Does withdrawing a timely filed application/petition with the USCIS lead to unlawful presence?

Authored on: Wed, 02/12/2020 - 00:39

Question

1. Can I just withdraw the whole petition? and go out of the country and travel back on H4
2. Will withdrawing the "Extension+Amendment" petition without responding to the RFE make my presence UNLawful for the last 11 months. (I-94 Expired Dec 2018 last year) because I worked on the client on their new address without an approved amendment?

Answer

Watch the Video on this FAQ:

Does withdrawing a timely filed application/petition

with the USCIS lead to unlawful presence?


Video Transcript

 

In amendment case there is no 240 day limit. You can keep working as long as the file is active. 240 days is only extensions without a change. If you want to withdraw and go out of the country and travel back on H-4 for  that is fine.There is no unlawful presence here and you should always respond to RFEs. Never walk away from a RFE. It red flags your case.  The government starts thinking you are trying to do sometime. FAQ in detail...



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Effect of H-1B Approval on H-4 EAD

Authored on: Tue, 09/24/2019 - 06:40

Question

My wife currently working on H4 EAD which is valid till October 2020. Her company filed for H1B this year and she got approval for 3 years starting 10/01/2019.
However, She would like to stay on H4 EAD. Does law permits her to work on H4EAD even after her H1B approved? or naturally her work visa status will convert to H1B effecting 10/01/2019?

Answer

Watch the Video on this FAQ: Effect of H-1B approval on H-4 EAD

Video Transcript:

The practical solution would be to have your lawyers contact USCIS and explain to them the problem, and if you are willing to take a risk go ahead and have the H-1 revoked. Also make sure that it gets done over the phone as well as in writing. So if a change of status does not take effect I think you would continue to be in the old status which is H-4 EAD. So act quickly before October 1st to revoke or withdraw your wife's H -1. FAQ in detail...

 
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What to Expect from H-4 EAD Revocation

Authored on: Wed, 07/31/2019 - 02:23

Question

I am on H4 EAD working in a full time job .Now as their are news coming to revoke H4 EAD, if the H4 EAD rule revokes, what might be the other options for me to continue my job? If I join masters, will I get the CPT if I change to F1 visa in the final semester. Is it valid like that?

Answer

Watch the Video on this FAQ:

What to expect from H-4 EAD revocation

Video Transcript

You can join Masters and you can get CPT but the government is now saying that CPT OPT combined can be only one year. So there is not a whole lot of options. Once we know the final regulations, we will be able to guide you better, but right now this is all we know. FAQ in detail...

 

 

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Traveling While H-4 and EAD is Pending

Authored on: Tue, 07/30/2019 - 03:23

Question

Wife's H4 change of status application (I-539) and EAD (I-765) filed concurrently and in process. Can she travel outside country, get H4 visa stamping done and reapply separate EAD (I-765) again?

Answer

Watch the Video on this FAQ:

Traveling while H-4 and EAD is pending

 

Video Transcript

If you have H-4 change of status and EAD both pending and you travel, come back and reapply for the EAD. You cannot use the old request. But if you are already on H-4 and EAD is pending you can travel and come back. FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Is H-4 EAD Tied to an Employer of H-1 Holder or to an I-140?

Authored on: Mon, 02/25/2019 - 03:52

Question

I had an approved i140 from employer A for over a year. And my wife has her H4 and EAD approved recently (employer A).
In between, I switched to a new employer B and they have filed her H4 and EAD together with my H1b application. Currently her H4 & EAD is pending from employer B, but my H1b from employer B is approved. my i140 with employer B is not started yet but previous employer i140 was approved for more than 180 days. In this scneario, can the H4EAD approved with my previous employer A's i140 can still be used/valid?

Answer

Listen to the Audio on this FAQ:

Is H-4 EAD tied to an employer of H-1 holder or to an I-140?

Video Transcript

An H-4 EAD is neither tied to a particular employer nor to a revoked I-140, if the I-140 stayed approved for 180 days and any one of those 180 days fell on January 17, 2017. More...

 

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Traveling Abroad While H-4 EAD is Pending

Authored on: Wed, 11/21/2018 - 10:33

Question

I changed my job from company A to Company B. H1,H4,H4 EAD is approved for company A. I moved to company B and my H1 change of employer is approved. While H4 is pending with company B. Can my wife travel to India and apply for H4 visa stamping in India?

Answer

Watch the Video on this FAQ: Traveling abroad while H4 EAD is pending

Video Transcript

You can travel if you are already on H-4 and just your EAD is pending. If you have a change of status as well as an EAD pending don't travel. If only EAD is pending and you are already on H-4 that is ok. Please talk to your lawyers. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-4 EAD Based Upon Prior Employers

Authored on: Mon, 09/10/2018 - 05:15

Question

I am currently working with employer A on H-1B visa with I-140 approved for over 180 days. My wife is on F-1 EAD. I am planning to move her visa status from F-1 to H-4 EAD AFTER I join Employer B next month based on my approved I-140 from my employer A. <br>

My questions are:<br>
1. Once I join employer B, will I be able to apply for my wife's H4 EAD based on approved I140 which I have from employer A? Can I apply both visa status change (F1 to H4) and application for H4 EAD concurrently?<br>
2. In other words, will changing my employer impact my wife's eligibility to get H-4 EAD based on my approved I-140 from previous employer?<br>
3. Can I change multiple employer based on I-140 approved from employer A? If yes, what if employer B has already started green card process (PERM)?<br>
4. If I get I-140 approved from employer B also then what will happen to I-140 approved with employer A?

Answer

 

Video Transcript:

1. Yes, you can apply both change to H-4 and H-4 EAD concurrently. Therefore even though you are working for employer B your wife can derive the same benefit as you would from the earlier I-140 approval.

2. No. Even though the I-140 was from the previous employer.

3. You can change employers as many times as you like and once your I-140 has been approved 180 days there is no limit to how many employers you can change and how long you can keep getting extensions of your H-1B as long as the dates are not current. If the dates become current then you can get only one year extension as far as I recall.

4. The answer is No. Both remain valid in their own right and you can derive the maximum benefit whichever is better for you out of the two. More...

 

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Can An Employee Withdraw An H-1B Petition?

Authored on: Wed, 07/04/2018 - 03:36

Question

I'm working on H-4 EAD with company A. Company B filed for H-1B for this year and it was picked in lottery but no decision made yet, now I don't want H-1B and asked company B to withdraw the H-1B and he agreed to it and shared the H-1B withdrawal letter along with the I-129C notice. Just to make sure that the petition is withdrawn without any issues, can I also post the same letter again to USCIS with company's from address on it?

Answer

Watch the Video on this FAQ: Can an employee withdraw an H-1B petition?

Video Transcript

You should send a letter to the government in writing, certainly, even get it maybe notarized to assure the government that these are your signatures and say that you no longer wish to apply for a change of status and you are not going to take up that job. So you hereby withdraw from the change of status request under the H-1B. After you send a notarized letter give them a call as well and just tell them you have written and this is what you want to be noted and that you are not going to go through the change of status. There is no actual procedure for it, but this can be as secure as you can be to ensure that the government will not give you a change of status even though you don't want one. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-1B and Green Card Transfer From a Non-Profit Organization to For-Profit

Authored on: Thu, 05/03/2018 - 13:09

Question

I am currently working for a Non-profit org on a cap-exempt H-1B. and my company initiated my GC processing. Below are the few questions:<br>
1. Is the GC processing any different thru a non-profit from a for-profit organization? meaning, is it any advantageous to process my GC thru a non-profit?<br>
2. Can my I-140 from a non-profit be transferred to a for-profit org, if I was able to move to a for-profit org?<br>
3. What are the possible ways that I could move to work for a for -profit organizations? From your previous calls and thru my research I found out below few ways that I could to that. Please give your inputs<br>

a. Finding a profit employer to file my cap-subject H1 (Can I start working for my new employer as soon as my H1b is picked in the lottery or approved, instead of waiting till Oct 1st?)<br>

b. If a new employer sponsor my cap-subject H1 and if I dont move to the new employer, will my current cap-exempt H1 be still active and should I have to go under the cap next time I file a Cap-subject H1<br>

c.applying for concurrent H1b<br>

d. Moving on to H4EAD and filing a H1b next April<br>

e.Joining a Masters CPT college and filing a Cap-subject H-1B next year

Answer

Watch the Video on this FAQ: H-1B and green card transfer from a non-profit organization to for-profit

Video Transcript

1. The answer is No. There is no advantage in going through for-profit or non-profit that's just irrelevant.

2. No, non-profit or for-profit does not matter you cannot transfer I-140s, you can transfer priority dates unless your 1-140 is based upon a National Interest Waiver or an EB-1A.  Your green card can be transferred once your I-140 is approved and I-485 has been pending 180 days, then it doesn't matter what the nature of the organisation is.

3. a.  I don't think there is any specific law on this issue. Technically, you can start working for them on receipt, but obviously you will only get a receipt if your case is picked up for the lottery. So if you have been maintaining H-1B status I believe you can start working for a cap subject employer as soon as your H-1 is picked up.

     b.  Absolutely. My guess would be if your H-1B cap subject H-1B is approved and it is not revoked till October 1st, I don't think you will be subject to a cap to work for a for-profit in the future. It shouldn't be revoked before October 1st and you should receive your change of employer. So in other words, you should get a new I-94 with the case because USCIS has been taking this position that just getting an H-1B approval does not put you over the top where you are safe from cap quota issues. They say unless you receive a change of status or go get a visa stamping till that time you are not exempt from the quota so you must also receive an I-94 which is a transfer of employer, but you can still continue working with the old employer.

    c.  Another way is applying for concurrent H-1B although it is a strange provision in the law where if you have a quota exempt H-1B as long as you maintain that without worrying about the quota you can also work on a concurrent H-1B for a quota employer.

    d. Moving to H-4 EAD is not a good idea because in June they are going to announce the revocation of the H-4 EAD regulations according to the court.

    e. Joining a Master's CPT and filing a cap yes, that's definitely an option.   

More....

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-4 EAD Termination and Converting to H-1B

Authored on: Tue, 03/20/2018 - 02:42

Question

I was on H1 before completed all 6 years on it and converted to H4 and working on H4 EAD now. With latest court update, USCIS may decide to end H4 EAD program or stop new applications in next few months( we still do not know the final outcome). My EAD expires in November 2018 which leaves me no option of applying renewal before May 2018 ( 180 days clock). If this EAD goes away will I be able to file fresh H1 in April 2019 ? If in next couple of months, my spouse decides to switch Job based on his approved I-140 then my H4 will also need to transfer/extend. At the same time, will I able to extend my EAD at that time or I still have to wait to fall under 180 days expiry clock based on my current November 2018 EAD expiration date.

Answer

Watch the Video on this FAQ: H-4 EAD termination and converting to H-1B

Video Transcript

If you have already completed six years you cannot go back to H-1 unless you leave the United States for at least one year or unless you start a green card. Then you would be able to apply for an H-1 extension based upon either the first year anniversary of the filing or I-140 approval, whichever comes first you have to fall under the 180 days. A mere change in jobs doesn't allow you to reset the period for yourself.  More...

 

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Can I Get H-4 Visa Stamping While the H-1 to H-4 Change of Status is Still Pending?

Authored on: Mon, 02/19/2018 - 03:41

Question

H1 to H4 COS pending from Jul 14 2017. I94 expired Nov 2nd. H4 to B2 applied on Oct 31 2017 as per our attorneys suggestion due to some delay with spouses visa. Spouse's H1 is now approved. I would like to get my H4 as soon as possible and apply for H4 EAD. Can I go to Canada/ any close by country and get my H4 stamping done while the petitions are pending or wait till H4 is approved? or going to India is my only option

Answer

Watch the Video for this FAQ: Can I get H4 visa stamping while the H1 to H4 change of status is still pending?

Video Transcript:

Absolutely no problem at all. You can go to any country of your choice, no harm done. Remember for H-4 stamping a prior approval from the USCIS is not needed. You walk in with your spouses H-1 approval and that's how you get your H-4. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-4 EAD and H-1B Extensions Rules Change

Authored on: Mon, 01/22/2018 - 23:29

Question

1. I have completed 6.9 years on L1A and move to H4-EAD based on my wife’s approve I-140. Now H4 EAD may go away. What option do I have to stay here and continue working (even after gap of a few months if needed) or I need to go out of US for at least 1 year and come back? <br>

2. I have already completed my 6.9 years. Can company apply H1B for me in April 2018 and I can come back to US after spending 1 year outside. I believe H1B can be applied only 6 months prior to joining that job. But I can’t start working from Oct 1st as I already completed 7 years without pending GC labor/ I-140. In that case I can apply H1B only in April 2019 and start working from October 2019?

Answer

Watch the Video on this FAQ: H-4 EAD rules change and H-1B extensions rules change

Video Transcript

1. What you could try doing is have your green card started and you can use that to extend your H-1. 

2. The problem is you don't have any time left on your H-1 because you have taken 6.9 years of L-1A. I think you can only do this if you start a green card process. More Questions and Answers

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Revocation Of H-4 EAD Rules

Authored on: Tue, 12/19/2017 - 06:45

Question

I have recently heard lot of news about the H4 EAD will be removed and DHS are planning to decide on it after Dec 31st 2017. How much of this is true?

Answer

Watch the Video on this FAQ: Revocation of H-4 EAD rules

Video Transcript

This whole thing is very uncertain I wish I could give you a better answer, but plan for contingencies, plan for what am I going to do if my H-4 EAD regulations go away. So, I think it is a little premature for me to give you a definitive answer. More ...

 

Also, visit this link on H-4 EAD and Other Immigration Regulations 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Erroneously Given Longer Duration On H-1B Than Eligible

Authored on: Tue, 12/19/2017 - 06:13

Question

I'm completing 6 years on H1B on 14-Jan-2018 and I have a visa stamped with the same date from my previous employer on my passport. When I changed job on 24-Jan-2017 I received an approved I-797 with an expiry date of 14-Mar-2019. I'm not sure if there was an error from the employer or attorney while filing or while approving the application. Now I have an approved I-797 with an additional year which would mean 7 years on H1B at a stretch. I'm planning to visit India with my wife (on H4 visa) next month for a couple of weeks and return back before the visa expires on my passport. Also, I'm thinking of not getting the new visa stamped on my passport and just show the approved I-797 to the officer while entering the US. Do you see any problem or issues if I do this?

Answer

Watch the Video on this FAQ: Erroneously given longer duration on H-1B than eligible

Video Transcript

You are not allowed to take advantage of USCIS errors. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Doing Business on H-4 EAD

Authored on: Thu, 11/09/2017 - 06:47

Question

I am on H-1B and my spouse is on H-4 EAD. She got her EAD last year. She would like to do online business where she will sell items online on eCommerce website like ebay, amazon, etsy. These items will be shipped from India. I would like to know if she can do such online business where the items are going to be shipped from India.

Answer

Watch the Video on this FAQ: Doing business on H-4 EAD

Video Transcript

Of course on H-4 EAD, she can do anything she likes, she can do online business, sell items on ebay amazon no problem at all. These items shipped from India is perfectly fine.

More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Status of H-4 EAD Litigation/Suit

Authored on: Fri, 10/20/2017 - 03:55

Question

My question is about the latest news regarding H4-EAD. I understand that DHS has asked for abeyance until 30 Dec, 2017. USCIS and DHS is evaluating the H4- EAD rule in accordance with the Presidential "Buy American, Hire American" policy. DHS will refocus its review of the H4 rule to ensure that it meets the newly announced priorities and to decide whether to undertake a new rule making concerning the H4 rule and comply with the Presidents Order. <br>

Please find this note requesting you to explain in layman terms what this could mean for the H4-EAD holders.

Answer

Watch the Video on this FAQ: Status of H-4 EAD litigation/suit

Video Transcript:

Right now, according to the government, this lawsuit pertains to regulations that may not be relevant because the government may decide to overrule these regulations with some new regulations.

What would the new regulations state we don't know yet as the possibilities are several. The government could end up modifying the rule, narrowing it or could end up totally rescinding that rule and of course if you have to rescind a regulation I don't know of doing it other than going through the rulemaking process again.

So that would probably take a few months and my guess would be in order to keep the exit from the regulations if there is indeed an exit orderly the government will probably provide some months grace period for closure on the H-4 EAD's. So right now that's what we know. More...

 

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Transfer from H-1 (with I-140 approved) to H-4 EAD

Authored on: Fri, 08/25/2017 - 04:05

Question

I have approved I-140 with company A and my wife has her I-140 approved or over 2 years. I'm planning to move to H4 EAD. Can I file for H4 and H4 EAD concurrently? What would happen to my earlier I-140 and also to the GC process if I am on H4?

Answer

You can most definitely file H-4 and EAD together. Your green card process can continue even though you have changed your status.

Query Regarding Impact on H-4 EAD During Job Change

Authored on: Fri, 07/07/2017 - 05:11

Question

1. If I have my I-140 Approved and its been more than 180 Days after approval then I believe that even if I change the employer the I-140 does not gets revoked and it still stays valid. I can continue to extend my H1B with my old I-140. Is my understanding correct? <br>

2. If suppose I have applied for my H4 dependents EAD while I am in my first company and both of us are working. Now it's been 180 days after my I-140 got approved and I switch my employer. In this case does my dependents EAD get's affected in any way?
<br>
3. Now assuming that answer to first question is Yes, but I believe that in-order to apply for GC my new employer has to file my PERM and I-140 again. If that happens will my dependents EAD gets affected in any way until the new I-140 gets approved?

Answer

1. The essence of your understanding is correct. You are safe against revocation.
2. No effect on H-4 EAD of H-1 change of jobs, as long as the H-1 holder maintains status.
3. Again, no effect on H-4 EAD if your new green card is filed.1. The essence of your understanding is correct. You are safe against revocation. 2. No effect on H-4 EAD of H-1 change of jobs, as long as the H-1 holder maintains status. 3. Again, no effect on H-4 EAD if your new green card is filed.

Regarding Impact On H-4 EAD During Job Change

Authored on: Fri, 06/30/2017 - 11:32

Question

1. If I have my I-140 Approved and its been more than 180 Days after approval then I believe that even if I change the employer the I-140 does not gets revoked and it still stays valid. I can continue to extend my H1B with my old I-140. Is my understanding correct?<br>

2. If suppose I have applied for my H4 dependents EAD while I am in my first company and both of us are working. Now it's been 180 days after my I-140 got approved and I switch my employer. In this case does my dependents EAD get's affected in any way?
<br>
3. Now assuming that answer to the first question is Yes, but I believe that in order to apply for GC my new employer has to file my PERM and I-140 again. If that happens will my dependents EAD gets affected in any way until the new I-140 gets approved?

Answer

1. The essence of your understanding is correct. You are safe against revocation.
2. No effect on H-4 EAD of H-1 change of jobs, as long as the H-1 holder maintains status.
3. Again, no effect on H-4 EAD if your new green card is filed.

Changing employers after I-140 approval; impact on H-1, green card, H-4 EAD, etc.

Authored on: Fri, 06/09/2017 - 02:51

Question

Planning to change my employer. Priority Date: Sept 2014 (EB2). H1: on my 5th Year (Filed for an extension it is currently in process). My plan is to change my employer once my extension is approved but I have the following questions. I am 100% sure my employer is going to withdraw my I-140. How is my H1 transfer going to work?

Answer

Watch the Video on this FAQ: Changing employers after I-140 approval; impact on H-1, green card, H-4 EAD, etc.

Video Transcript

First of all the moment, your I-140 is approved no matter which category EB-1 or EB-2, the Priority Date is yours to keep that means if you got your green card filed in let's say 2017 and you left this employer after the I-140 approval, they revoked your I-140 and you started another green card in 2020 your Priority Date will be still 2017 because your I-140 was approved. So the moment the I-140 was approved the Priority Date becomes your property and it can be carried across categories, across employers, and across geographical areas. So if you go from a PERM filing in New York to an employer in California and your previous filing was EB-3 next filing is EB2 or even EB-1 you can carry the date of the work petition as long as the I-140 was approved. The moment the I-140 is approved, the Priority Date is yours.

There are limited exceptions unless the I-140 is revoked for fraud, etc., by the USCIS. Even if the employer revokes the I-140 you will keep your Priority Date. In addition to that, if the I-140 gets approved and stays approved for 180 days you will not only carry your Priority Date you will carry your right to extend your H-1 through any employer indefinitely. You will get a second benefit after 180 days and if the lawyer revokes the I-140 you will still get the benefit of both Priority Date and the right to extend your H-1 through any employer. The government has also said if you have an H-4 EAD for your spouse, your I-40 stayed approved for 180 days your wife's or your husband's H-4 EAD is safe even if the old employer revokes the I-140 later on as long as the I-140 stayed approved for 180 days. So if you left but the I-140 stayed approved for 180 days H-4 EAD is safe. That, in a nutshell, is the general law. More 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Extending H-1/H-4EAD; working while extension pending

Authored on: Tue, 06/06/2017 - 00:08

Question

I am on H1 Visa, my H1, wife's H4 and H4 EAD expires on 7/18/2017. I will be completing my 6 years by 7/18/2017. My I-140 is approved. I have a question<br>
1. Should I file for H4 EAD extension along with my H1 and H4 extension<br>
2. Can my spouse (H4-EAD) work while her extension in progress?

Answer

Watch the Video on this FAQ: Extending H-1/H-4EAD; working while extension pending

Video Transcript

1. Yes, you should. 

2. No. Once the current H-4 expires and EAD expires and you are waiting for the new EAD to arrive she has to stop working. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.


Activities permitted under H-4 EAD

Authored on: Sat, 05/20/2017 - 23:00

Question

1. Can an H-4 EAD person open a small business like ice cream shop as part time?
<br>
2. Also can h1b spouse support the maintenance of the business without taking any remuneration. Is it legal and allowed?

Answer

Watch the Video for this FAQ: Activities permitted under H-4 EAD

Video Transcript

1. With a H-4 EAD, you can do anything you like. You can work, you can choose not work, you can start your own business, you can work three hours a day, you can work ten hours a day, you can work eighteen hours a day. 

2. I am a little uncomfortable with that. Normally it should not be a problem as a volunteer activity, but there are two problems here.

a. the ice cream business is a for-profit business under the Fair Labor Standards Act, they cannot take free work.

b. this might be a violation of your status because it is giving you a benefit directly or indirectly. I think it is a difficult situation. She can do what she wants. You should not work for her. More

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-4 EAD Status When Moved to Different Employer

Authored on: Mon, 05/08/2017 - 23:44

Question

1. I have approved I-140 with company A and my wife got H-4 EAD. I am planning to move to company B. Can my current employer (Company A) revoke I-140? (I-140 has been approved for more than 6 months). If he can't revoke I-140, can my wife work on the H-4 EAD that she got based on company A's I-140?<br>
2. If my H-1 and my wife's H-4 transferred to Company B, do I need to apply for new H-4 EAD or can she continue working on H-4 EAD from company A (that H-4 EAD still has validity)?

Answer

1. The employer can revoke, but, USCIS says, after 180 days they will not revoke the H-4 EAD.

2. You will not need to change the H-4 EAD upon moving to any number of companies, as long as you maintain your H-1 status.

Travel while H-4 EAD is pending

Authored on: Thu, 05/04/2017 - 06:10

Question

Can my wife travel to India and then back to the USA for a period of 12 days while her H4 EAD application is pending? Based on current estimates of processing times we do not estimate that her H4 EAD will come before the first week of July. We will be back to the USA in the first week of May.

Answer

Watch the Video on this FAQ: Travel while H-4 EAD is pending

Video Transcript

If somebody has applied from H-1 to H-4 or F-1 to H-4 and applied for EAD at the same time they should not travel until the F-1 or H-1 to H-4 status is approved because if you do then you have to go apply for a visa come back and then apply for EAD all over again. On the other hand, if your H-1 is approved or you already have it and EAD is pending you are allowed to travel. The government discourages it as it can cause delays in EAD processing but it is not illegal. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Can a revoked I-140 help for H-4 EAD?

Authored on: Mon, 04/10/2017 - 06:12

Question

Do we have any more clarity whether the revoked I-140 can also be used to apply for new H-4 EAD? My I-140 was approved in 2015 but I recently changed job (after Jan 18) and was looking to apply for my wife's H4 EAD based on old I-140.

Answer

Watch the Video on this FAQ: Can a revoked I-140 help for H-4 EAD?


Video Transcript

In a situation where an I-140 was revoked on or after January 17, 2017, and it stayed approved for 180 days, that revoked I-140 can be used to get or extend an H-4 EAD. The government has said they will extend the benefit of H-4 EAD extension to those types of I-140s even if they are revoked, extension or a new H-4 EAD. One more thing to consider is for an H-4 EAD to apply or extended it is not necessary that you must have a particular I-140. You can use any I-140's. More

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Consequences of I-140 revocation

Authored on: Fri, 04/07/2017 - 00:39

Question

1. Consequences if revoked (I-140) within 180 days. Benefits, if unrevoked(I-140) for 180 days and end date at work still be May 15th (or, should I ask my employer to EXTEND my end date until end-of-June so I complete my 180 days of I-140). <br>
2. How question (1) above will impact H4-EAD which is under processing. if approved before May-15th H4-EAD is still valid and can be used ?<br>
3. Does it mean after May-15th (last day at work) I have 60 days grace period to look for a new employer who sponsors my H1-B?

Answer

Watch the Video on this FAQ: Consequences of I-140 revocation

Video Transcript

1. If I-140 is revoked within 180 days of its approval you only get to keep your Priority Date. You do not get to keep your right to extend your H-1.

2. H-4 is completely dependent on the H-1, as long as you maintain your status I don't see any reason why the H-4 EAD cannot be used.

3. The 16 day period is not automatic. If you were laid off due to circumstances beyond your control you can ask the government to give you the 60 day grace period. If you find a job and file H-1 within that time. More

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Do jobs have to be same or similar when I port my priority date?

Authored on: Wed, 04/05/2017 - 11:40

Question

1. I'm on H-1 visa and on my 8 th year ...visa is getting extended based on I-140 approved. I'm getting an offer to join different company end client(currently I'm with the consulting company) designation not decided yet. In my current employer, I am manager and wondering if I get a different position in other company like Director or solution architect or Sr Manager...and if I join that company what effect that will make on my current approved I 140 or GC process. Is this safe to jump? I heard job category needs to be same or similar in various forums for PERM but I don't have clarity or understanding what that rule is and....how that thing impact my situation.<br>
2. I have not filed I-485 yet since my priority date is back in 2013 in EB2. Also, my wife has H-4 EAD does that impact as well?

Answer

Watch the Video on this FAQ: Do jobs have to be same or similar when I port my priority date?

Video Transcript

1. When you port the whole job; I-485 is pending 180-days, jobs have to be same or similar. When you are just porting the Priority Date in the I-140, jobs can be completely different. You have to start the green card from the PERM process, but when you are just porting the Priority Date there is no problem.

2. The answer is No. As long as you are maintaining your H-1 status and she is maintaining her H-4 status. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-4 EAD changing back to H-1

Authored on: Tue, 04/04/2017 - 02:52

Question

1. Had H-1B petition approved in 2015 through consular processing while residing outside the USA? But did not get stamped for H-1 but came to the USA on H4 visa. Currently working as an employee on H-4-EAD. Can I change my status to H-1B from H-4, If Yes - Will it be treated outside H-1B Cap?<br>
2. Do I have to leave the country and get stamped and re-enter with H-1B status?<br>
3. Will I get a new I-94 with latest 1 yr or 3 yrs approval? <br>
4. How many days will the process take to change status?<br>
5. Can I continue working while the COS is in progress or pending with USICS as I would like to continue working without a break? Also, do I have to go back to the same petitioner who applied for H-1B visa or can I transfer it to a different employer?

Answer

Watch the Video on this FAQ: H-4 EAD changing back to H-1

Video Transcript

1. That's uncertain. If you are outside the USA and you got your H-1B but you didn't get it stamped, will consider you still subject to the quota. I personally think if they say you can't get an exemption from the quota and you got to get a visa stamping there is really no support in law for that viewpoint. So you can try that's all I can tell you.

2. You don't have to leave USA to get H-1B status if you are maintaining H-4 status.

3. If you got three years remaining on your H-1 or more you will get a three-year H-1 and if the project is for 3 years.

4. Many months.

5. If your EAD is valid until your H-4 is changed to H-1 you can continue working. Once you are exempt from the quota you don't have to go back to the same employer. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Changing employers after 6 years of H-1 are over

Authored on: Tue, 04/04/2017 - 02:22

Question

1. With my approved I-140 from Company B can Company C use that to file my extension for 3 years. I have a copy of approved I-140. Is it safe to change companies in the 6th year. <br>
2. Using the approved I-140, I have filed H4-EAD for my spouse in Feb 2017 and is yet to receive the EAD approval. If I get it will be only valid till Nov 2017 based on current I-797 validity. So, if H1-B is approved for Company C, can I file extension of H4-EAD 120 days before validity based on that approval. If EAD is provided, it is going to expire on Nov 2017 based on the H1-B's current I-797.<br>

Answer

Watch the Video on this FAQ: Changing employers after 6 years of H-1 are over

Video Transcript

1.Yes you can file for an extension. That's all you need a copy of the approved I-140. It is safe to change companies. The law is once your I-140 is approved and stays approved for 180 days, even if your old employer revokes your I-140 you have the right to keep extending your H-1 through any employer.

2. I think you can apply 180 days. The new regulations allow you to file for EAD extension 180 days ahead of time. Have it double checked. It is not a guaranteed right but USCIS has said that they will accept that unless they post it differently on their website. So always double check the information. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

"Retroactive" effect of the new regulations; would H-4 EAD remain valid if I-140 is withdrawn

Authored on: Fri, 03/24/2017 - 10:13

Question

My I-140 got approved in Oct 2016, after this rule is passed do I have to wait for 180 days after Jan 17 or will it be applied from Oct 2016 itself?

Answer

Watch the Video on this FAQ: "Retroactive" effect of the new regulations; would H-4 EAD remain valid if I-140 is withdrawn

Video Transcript

I think if you have arrived at 180 days mark on or after January 17th, you should be covered by the regulations. More...


 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Revoke H-4 EAD Regulation

Authored on: Tue, 03/14/2017 - 08:30

Question

If Trump administration tries to revoke H-4 EAD through rulemaking /congressional Act, is there some way for the H-4 community to fight for it in the court to retain the H-4 EAD? What are the least possible ways to fight for it?

Answer

Watch the Video on this FAQ: Revoke H-4 EAD regulation



Video Transcript:

The reason H-4 EAD regulations have come under a cloud is because there is a lawsuit pending. This all started about two years ago when an organization called Save Jobs USA sued USCIS for the regulations that created H-4 EAD and the basis was that these regulations were beyond the authority of the USCIS and they were hurting US workers. 

The major issue right now is, does Save Jobs USA have the right to file this lawsuit. If they win then this case goes back to the District Court. H-4 EAD regulations should not go away very quickly. One of the dangerous thing is that Save Jobs USA as a part of their appeal has asked the court to not only rule that they have standing to sue but also to rule that the Department of Homeland Security does not have the power to issue these regulations. I don't think the court of appeals is going to entertain that.

Rajiv in this video explains, discusses and answers questions on this issue.


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Will H-4 EAD Rule be revoked?

Authored on: Thu, 03/02/2017 - 00:34

Question

1) Is it true H-4 EAD rule will be revoked by the government? <br>
2) My H-1B visa is going to expire in 14-Jan-2018 and if my employer submits my PERM application in the month of June (i.e. before 6 months of my current 6 years of H-1B visa duration).<br>
a) If my PERM is not approved before my current H-1B visa expires. Can I change to H-4 EAD at that time?<br>
b) If my PERM approved after change to H-4 EAD, Can I change back to H-1B?<br>
c) Is it possible to convert from H-1 to H-4 EAD without taking a break in employment?<br>
d) If my PERM gets approved after my current H-1B expires can my employer file for H-1B extension?<br>
3) I would like to move to H-4 EAD but I would like to come back to H-1B anytime in future, in that situation what is the best status for H-1B?<br>
4) If I apply for new H-1B is it comes under H-1 quota (After 6 years completes.)?

Answer

Watch Video on this FAQ: Will H-4 EAD Rule be revoked?

Video Transcript:

1. I don't think it will be revoked.

2a. Yes, you can if your spouse's I-140 is approved or she is in the 7th year of her extension.

2b. Yes, you can change back to H-1B.

2c. I cannot predict this question as it is a question of logistics. 

2d. Most definitely.

3. You can be in any status. If your right to activate or H-1B comes mature you can jump back to H-1B without any problem. 

4. It does not.

More...

When is an H-1B amendment required?

Authored on: Mon, 02/27/2017 - 07:38

Question

I am on H-1B visa and my 9th year H-1B approval will expire on 09/01/2017. This approval is when I was working at client A and from 09/19/2016 , I am working at client B but my employer checked with Lawyer and she is saying no need to file amendment as it is in same MSA. Is that ok? and my wife she on H-4 with EAD she wants to travel to india and She has to go for stamping so since my H-1B amendment is not filed do you see any issues for her H-4 stamping ? Is it safe to travel ?

Answer

Watch Video on this FAQ: When is an H-1B amendment required?

Video Transcript:

USCIS has given us a relatively an incomplete memorandum that currently says this: if an employee relocates within the same geographical area,  which is a normal commuting distance of an approved location they do not have to file a H-1B amendment. This is not a complete story. The memorandum is misleading and we have been advising our clients to work according to my suggestions and not depend on the memorandum. 

First of all, even if you go by the language of the memorandum, remember USCIS and the Department of Labor have different regulations so just because the memo talks about the USCIS regulations does not mean you have complied with the Department of Labor regulations for change of job locations. Department of Labor says, any new location even if it is in the same building you must post the LCA notice there, at the very least. So even if you are moving within the same area LCA notice should be posted.

The second way this memorandum is misleading is: what if I change jobs next door, but my job description changes completely? You will have to file H-1B amendment even though it is the same neighborhood.

What if my client changes and what if my project changes. I think in all those situations, the conservative thing to do is to file an H-1B amendment. More..

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Converting from another work status (such as H-1) to H-4 EAD

Authored on: Tue, 11/15/2016 - 02:34

Question

My spouse is currently working on F-1 OPT or H-1 status. How can he/she change to H-4 status and obtain H-4 EAD without a gap in the ability to work?

Answer

We have received several requests about how to ensure there are no gaps in a spouse’s ability to work when converting from another work status (such as H-1) to H-4 EAD.

 

The short answer, as of now (November 2016) is that here is no way to guarantee that there will not be any gap in a spouse’s ability to work.  The problems arise from the fact that there can be a gap between change of status to H-4 and receipt of EAD.  The law requires that EAD must be approved and the EAD card must be in hand for the H4 holder to work. 

 

To illustrate some of the scenarios we have been asked to comment upon:


Question: My spouse is currently working on F1 OPT or H1 status.  How can he/she change to H4 status and obtain H4 EAD without a gap in the ability to work?

 

Answer: There is no way to ensure there will be no gap between the current employment authorization and the H4 EAD approval.  The H4 and H4 EAD petitions can be filed concurrently, but USCIS has not been adjudicating them at the same time.  First, USCIS adjudicates the H4 petition, after which they start working on the H4 EAD petition.  As the H4 EAD generally takes about 90 days to be adjudicated, it is best to anticipate H4 EAD approval about 90 days after the H4 approval.

 

It is possible to request a future start date for the H4 status.  The hope would be that by the time the H4 status becomes effective, the H4 EAD is also approved.  But again, there is no way to guarantee the time frame. 

 

Question: My spouse entered the US on H4 status.  How soon can the H4 EAD be filed and how long will it take before he/she can work?

 

Answer: The H4 EAD can be filed as soon as the spouse has arrived in the US on H4 status.  Because, the USCIS is taking about 90 days to adjudicate the H4 EAD petition, your spouse is likely to be able to start working in about 3 months after the EAD petition is filed. 

 

Question: We need to renew my H1 and my spouse’s H4 and H4 EAD.  Would it help the EAD to be issued faster if we file the H1 petition through Premium Processing?

 

Answer: Possibly.  There is no Premium Processing option for H4 or H4 EAD, but as a courtesy, the USCIS often tries to adjudicate H4 and H4 EAD petitions at the same time as the Premium Processing H1 petition.  There is no guarantee that the USCIS will adjudicate the H1, H4 and H4 EAD at the same time.  It is possible that only the H1 will be adjudicated under Premium Processing, and the H4 and H4 EAD will be adjudicated in the normal queue.

 

Question:  My H1 does not need to be extended, but my spouse’s H4 and/or H4 EAD do need to be renewed.  How can the petitions be filed so there is no gap in the H4 EAD authorization to work? 

Answer: It is critical to file these petitions early.  The H4 renewal can be filed 6 months before the current H4 expires, and the H4 EAD can be filed 120 days before the current H4 EAD expires.  While it is not a guarantee that there will be no interruption in the work, early filing is the best option to provide the USCIS with enough time to process the petitions.

 Click here for Rajiv's blog entry on H-4 EAD Rule

H-4 EAD Employer Change

Authored on: Fri, 06/24/2016 - 05:32

Question

I have an approved I-140 with PD 2013. My wife works on H-4 EAD based on my I-140. If I join another company with my I-140(say I get H-1, my wife's H-4 and EAD for 3 years), Would it be fine if she continues to work on that EAD even if my I-140 gets revoked/withdrawn after H-1 approval.

Answer

USCIS has said if an I-140 is revoked, they reserve the right to revoke the H-4 EAD. So far, they have not been revoking.

Does H-4 EAD have to be applied again if H-1 changes jobs?

Authored on: Wed, 04/06/2016 - 02:04

Question

I am currently on H-1B(Valid till Sep 2018) with approved I-140 for Company A and spouse has H-4 EAD (valid till Sep 2018). My question is, if I switch my job to a company B. Can my spouse continue working with the current H-4 EAD (which is valid till sep 2018)?Will it cause any issue during next H-4/EAD extension?

Answer

Watch Video: Does H-4 EAD have to be applied again if H-1 changes jobs?

Video Transcript: The answer is of course not. The only time you have to worry is if you fall out of status. As long as you are maintaining status every time you change jobs her H-4 and H-4 EAD is good until her H-4 and H-4 EAD is about to expire there is nothing else you got to do. She can continue working and she need not change H-4 every time you change H-1.

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-4 and EAD

Authored on: Thu, 03/03/2016 - 06:04

Question

My wife has H-4 plus EAD. If my job details changes, will my wife's EAD will be affected?

Answer

As long as appropriate H-1 amendments are filed and you maintain status, the change in your job description has no effect on the H-4 EAD. 

The Proposed I-140 EAD Rule - FAQ's

Authored on: Mon, 01/11/2016 - 07:23

Question

Answer

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

Pros and cons of H-4 EAD

Authored on: Thu, 12/10/2015 - 15:21

Question

My wife is on H-1B and became aware of her project end dates. We are currently evaluating the options of H-4 EAD.

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=1345

FAQ Transcript:

Question: My wife is on H-1B and became aware of her project end dates. We are currently evaluating the options of H-4 EAD. Can we file H-1-H-4 transfer and EAD concurrently?

Let's take the situation where you are filing H-1, for you yes I do not see any problem with it. If you are doing H-1 transfer, you can do her H-4 and EAD concurrently. However, if you are trying to do H-1 transfer for her along with H-4 EAD simultaneously, that can become little complicated. But I don't know what exactly you are trying to accomplish. If you are trying to cover both basis I would recommend to do an H-1 premium processing and then file an H-4. Let one status accomplish before you apply for the next status. If you want to do both simultaneously make H-1 premium.

Question: Do companies hire full time on H-4 EAD?

That depends upon the company. EAD holders has all rights almost equivalent to the Green card holder. So if the employer knows what this EAD is or they have good legal advice they should be able to hire full time on H-4 EAD.

Question: What are the benefits of H-4 EAD over H-1?

Some really big benefits. One benefit is there is no requirement of a particular salary. Number two is there is no requirement of specific job location. An H-4 EAD holder can work 3 hours in one job, 5 hours in another job location or 10 hours and then keep switching from job to job if they want. There is no limit on how they work. They can even start their own business. So those are some of the big advantages of H-4 EAD.

The biggest disadvantage is because the status depends upon the H-1 holder, something goes wrong with the H-1 status; they get laid off or they fall out of the status then the H-4 status is also in doubt.

Question: Do I recommend to convert to H-4 EAD?

That depends upon the case.

Question: What are the risks associated with the conversion?

From H-1 to H-4 not much risk that I can see.

Question: What is the typical timeline?

That is very tricky. We had a tweet exchange couple of weeks ago with the community member who said that; his wife's EAD got approved in couple of weeks. My office was reporting that H-4 EAD combine can take months. A few months ago they were only taking a couple of months. So few months is not an extraordinary for H-4 EAD combo. If you are doing EAD alone, already your wife is on H-4, it might be quick. Technically there is 90 days’ deadline on the government to decide these cases of EADs. How far they follow it I don't know.

H4 - EAD validation if H-1B holder moved to another company

Authored on: Thu, 10/15/2015 - 03:51

Question

I have a question on EAD validity for the below scenario. <p>
H-1B holder got I140 with Employer A and applied EAD for H-4. H-4 is valid until MM-DD-YYYY 10-29-2018. Now H-1B holder moved to Another Employer B, then at this point he doesn't have Approved I-140. Will EAD which received using Employer A valid until MM-DD-YYYY 10-29-2018? I knew for renewal of current EAD after 10-29-2018, we need approved I-140, but not sure exiting EAD is valid until 10-29-2018 if H-1B holder moved to Employer B.

Answer

USCIS has said that revocation of I-140 does not automatically invalidate an approved H-4 EAD, but they reserve the right to revoke such an EAD.

Applying for H-4 EAD while H-4 is pending

Authored on: Wed, 08/05/2015 - 07:22

Question

I am on H-4 visa and my husband is on H-1 visa since 2008. We have an approved I-140 and have applied for a three year extension on the basis of approved I-140 on May 8, 2015, but we have not got any confirmation from USCIS yet, so my concern is that can I apply for a H-4 EAD before our visa extension is approved.

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.    

https://youtu.be/tSRYmjhoEzA?t=928

FAQ Transcript:
You can apply for EAD. But USCIS has said they don’t like the idea of separating the applications as it can cause delays. Personally I think that’s baloney. I would file it if I were you. You have two options. You can premium the H-1 then H-4 gets premium. Kind of piggy bank on it and when the H-1 is approved file EAD as long as you have a receipt number. I don’t see why it should be a problem. So your choice I would file it.

H-4 Visa Approval

Authored on: Tue, 07/21/2015 - 10:32

Question

I received my H-1 approval & other documents yesterday. I am worried because the I-129 document I received yesterday states no dependents are filed with my petition (Page 4, Part 4). I had sent all my spouse details/ marriage certificate etc. while attaching supporting documents in March. What is the process for H4 visa approval as my spouse would be accompanying me.

Answer

H-4 visas do NOT require a USCIS approval for a spouse who is going to the consulate for visa stamping.

Application for H-4 EAD

Authored on: Wed, 06/24/2015 - 08:03

Question

FAQ 1. I am presently in Canada on a work permit and want to apply for H-4 EAD. My husband has a valid H-1 and an approved green card application . So we are eligible for applying. My question is that can I visit US for 2-3 days, mail my application and then leave the country? Do I need to be in the US when the USICS receives my application? Or I can immediately leave after mailing the application? <p>

FAQ 2. My spouse's PERM approved & his employer is still gathering required documents to file I-140. It is still within 180 days limit. Can I apply for H-4 EAD with my spouse approved PERM copy and other documents required ( eligible under beyond 6 years extension of H-1 & PERM pending 365 days) ? Or do I have to wait until his I-140 filed ?

Answer

Answer 1: Unless you are already on H-4, you cannot leave while the change of status request is pending. 

Answer 2: I think you will need the I-140 APPROVAL, not just receipt (or 7+ year H-1 extension). 

H-4 EAD filing based upon I-140

Authored on: Tue, 06/02/2015 - 10:07

Question

My husband got his I-140 approved from his previous employer. Then he changed his employer and has filed his LC which has NOT been approved yet. His previous employer has WITHDRAWN the I-140.He is in his 11th year of H-1. Couple of questions.<br>
1) Can I file for H-4 EAD?<br>
2) My husband currently has no I-140 approved. While checking my application, will they look into his application and cause any issues to his present H-1 extension?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/8N82R3qAiJo?t=569

FAQ Transcript:

Did he get his H-1 approval for one year or three years? If he got it for one year then you might be still able to get H-4 EAD filed. But if he got a three year approval or more than one year approval based upon the I-140 rather than the perm application you may not qualify and in fact the government has said if you are basing your H-4 EAD filing upon the I-140 then the I-140 is withdrawn you are no longer eligible to file the application and somebody asked a question what if my EAD is approved then the I-140 is withdrawn the government has said even then we reserve the right to revoke your H-4. So you cannot file unless you qualify under one of the two grounds. I-140 or one year extension based upon labor certification.

Filing I-765 while the I-539 is pending

Authored on: Tue, 06/02/2015 - 09:11

Question

I have a question about the H4 EAD. The USCIS states, "You may file Form I-765 with Form I-539, Application to Extend/ Change Nonimmigrant Status. However, USCIS will not process Form I-765 (except filing fees), until after USCIS has adjudicated Form I-539".<br>
In our case, my spouse's employer will be filing for our extension (I-539) but are not willing to file the I-765, as it is a new process. I was wondering if I need to wait to receive the approval before filing the I-765 or if it would be fine for us to file the same once we receive an acknowledgement.

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/8N82R3qAiJo?t=382

FAQ Transcript:

The reason that they do it that way is because then they are constrained to a 90 day deadline. If they start adjudicating both together the moment they open the I-765 they got 90 days. If they start doing both together they may not be able to meet the deadline. They already have the trouble meeting the deadline of 90 days for EAD cases. Government is discouraging you to file I-765 while the I-539 is pending. They say file either both together or wait till the I-539 is approved. Then file your I- 765.

Can I travel while my H-4 EAD is pending?

Authored on: Tue, 06/02/2015 - 08:54

Question

First of all thank you for all your blogs and videos on immigration. They are very informative and knowledgeable. I follow your views and suggestions on all my immigration work. I also recommend your suggestions to lot of my friends and colleagues. I appreciate your help towards the community.<br>
I have a situation:<br>
I am in my 3rd year of my H-1B status, my I-140 is approved and need to file for my spouse H-4EAD on May 26, but she needs to travel to India for family reasons in August this year.<br>
Questions:<br>
1) Will that be a Ok for her to travel to India while her H-4 EAD petition is pending?<br>
2) How long will the petition will take to come to a decision (~estimate)?<br>
3) What happens if her H-4 EAD petition gets approved and she is in India? Does she have to go to the US Embassy again?<br>
4) (Being positive but need to think the other sides of a same coin) what happens if her H-4 EAD petition gets denied? Will she be able to retain her H-4 status? Will she able to enter US without any issues?<br>
5) What would you suggest? Will that be ok for her to visit (or) to wait till the decision is made on her H-4 EAD petition?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/8N82R3qAiJo?t=123

FAQ Transcript:

Answer 1. There are two possible situations. If you are already in H-4 status USCIS says you can travel, of course you will need a visa to enter. And if you’re I-765, EAD is approved while you are outside USA no problem but we advice is not to travel is because this can cause you delay. The reason they give for delays is what if they issue an RFE. That is not a problem if you have a lawyer or somebody else helping you they can take care of the RFE or the notice of intent to deny. Or if they schedule you for fingerprinting etc., in an application support center you can always be informed and you can come back. So it looks like if you are already in H-4 status traveling while the I-765 is pending is not a problem. However if you are applying for  H-4  status the old law was and still remains if you travel when your change of status application is pending then you are out of luck. Your application is deemed to be abandoned and they will also deny the I-765.

Answer 2. There can be no estimate. What the government has said is if you file for H-4 and EAD at the same time we have by regulations 90 days to adjudicate the I-765 but we will begin the time to run until the H-4 is decided. That’s probably the approach they will take. 

Answer 3. That’s not a problem. Visa has nothing to do with the H-4 EAD. She need not go to the embassy.

 Answer 4. Absolutely. If the H-4 for some reason is violated or denied EAD has no way of existing. The status can stand by itself or the visa can stand by itself and the EAD denial does not affect it.  

Answer 5. I think it is ok to travel. It is up to you if you can avoid travel avoid it by all means if you must travel go ahead and travel.

H-4 EAD Expediting Possible?

Authored on: Mon, 05/11/2015 - 04:22

Question

My wife is eligible for H-4 EAD, I know there is no formal way for expediting the process but I've seen a clause in F-1 (OPT) EAD process called "financial loss" and if you've got a job and submit the offer letter while you're waiting for an EAD to get approved, they process your case faster and you get the EAD much sooner than expected. Does this rule apply for H4-EAD as well?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/y6RtaKhuoIY?t=864 

FAQ Transcript:

I do not know. But let me tell you this when you look at the expedite criteria for any government document they are basically the same. If you can show government error or economic necessity or emergency or some kind of humanitarian considerations - there is five or six criteria then apply. As general observation I think it should be possible to expedite H-4 EAD if you meet the requirements. Theoretically it is possible to expedite the H-4 EAD.

H-4 EAD - Documents needed; name issues; processing times, etc.

Authored on: Thu, 05/07/2015 - 08:07

Question

Q1. Among the documents needed for filing H-4, what are the ones we really need to make sure, we have them. I mean few like Date of Birth Certificate from Indian Municipal/Registration office..... is that needed even for H-4 EAD. What if the name on the Birth Certificate from Registration office is different from name on Passport? What should be done here? Any other documents etc. we need to be careful about and should be working to get ready now. (Education certificates and marriage certificate etc. we already have)<br>
Q2. Would it again be first come -first served in terms of filing H-4 EAD? I mean people who file on May 26-27 --would their applications be processed earlier than the ones who file little later.<br>
Q3. Approximately how much time it’s expected for EAD to arrive, everything going well<br>
Q4. One last question, if I happen to change my employer at this time, and if my GC process is re-initiated would my wife be still eligible for filing H-4 EAD or NOT ( in a situation if old employer revokes I-140 )

Answer

 

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

FAQ Transcript: 

A1. So far it appears to me and again we don’t have the details yet. The very least you will need is proof of marriage and birth certificate. I don’t think that is the normal requirement but I believe proof of relationship should be acquired and kept. Then the question what if the names on the birth certificate and passport are different.... we still don’t know lot about these issues I would say an affidavit explaining the discrepancy and probably making efforts to remove the discrepancy whether you want to have the passport issued under the correct name or whether you want to have a Indian court give a declaratory judgment of some kind that the name X and Y are the same person. Something like that would be a good idea. But it is not going to stop you H-4 EAD application at least in my mind. I think even education certificates are irrelevant because the h H-4 EAD is not given based upon what degrees you have it is given based upon your relationship with the H-1  holder who is at a certain level of maturity in the green card process. I am not worried about the laminated original document. That doesn’t bother me. 

A2. First of all USCIS just roughly follows the first in first out rule. They are not always bound by that rule because there are so many variations within processing times if it is given to a particular officer which depends on what is their case load is and what if they have to take a couple of days off. It’s not always predictable that you will always be first in and first out. 

A3. Under the regulations USCIS should adjudicate EADs within 90 days. But in case you don’t know they are finding it very difficult to keep to that time, I do not know when they get hundreds and thousands of applications are they going to keep that to that time, do they have the resources for that, I will be surprised if they are able to keep to the 90 days process but if it is merely administrative process and there is not a whole lot of investigation involved then I don’t see why not but I really don’t know. 

A4. The government has said as long as you have one I-140 that remains unrevoked they will give us the H-4 EAD. But if the I-140 is revoked then H-4 EAD will not be given.

H-4 EAD - Converting from H-1 to H-4 EAD - good idea or not?

Authored on: Wed, 05/06/2015 - 03:47

Question

My I-140 was approved on Sept 2011. I came to US on 2008 beginning on L-1 visa and then my employer converted to H-1 visa. On February'15 I got an extension on my H-1 visa based on I-140 approval but I didn't get it for 3 years from Feb'15 rather I got it till Nov'16 (about 1 year 10 months). I am thinking to join another company now. What should I consider before I transfer my H-1 to employer B from employer A on my situation? My wife is on H-1 and it’s valid till 2018. I am also thinking my wife to apply H-4 EAD rather continuing on H-1. Is that going to be a better option?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/y6RtaKhuoIY

FAQ Transcript:

I would say that I think you should hold off. Don’t give up H-1 to go to H-4 EAD. There are couple of issues here. We don’t really know how far the government is going to go into investigating these cases - are they going to go to details of the H-1 status, if not it could be a simple matter to get H-4 EAD. If they start getting into status issues we could be looking at a protracted battle over the EAD issues.

People who are thinking of going to H-1 to H-4 EAD I would suggest hold off for a couple of months and let’s see how the government is dealing with the EADs and if they are asking for too much information you may not want to convert from H-1 to H-4 EAD.   

H-4 EAD filing while H-1 extension is pending

Authored on: Wed, 05/06/2015 - 03:21

Question

I am on H-1B visa more than 6 years. I also have I-140 approved. However my H-1B is under renewal process. I do have 'receipt of notice' but not approval notice yet. Looking at the waiting time I don't think I will get H-1B approval along with renewed I-94 before May 26th 2015. I need to file EAD for my wife on 26th May.

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/y6RtaKhuoIY

FAQ Transcript: 

The answer is probably yes. But if you want to be even more circumspect you could even premium you’re H-1B. I mean if you are that concerned about it. Lot of these things have not been clarified but we do except them to issue a clarification before May 26th. Until then the practical approach I believe is you could apply for H-4 EAD while the H-1 extension is pending and you could, based upon the approved I-140 ask for the H-4 EAD but in the meantime you can also premium your H-1.

H-4 EAD Filing

Authored on: Sat, 05/02/2015 - 11:24

Question

My spouse is on H-1 visa and his former employer filed I-140 and then my spouse changed his employment to another employer and transferred his H-1, the I-140 has not been revoked by former employer. So my H-4 is with the former employer valid for three years, and current employer for my spouse has not filed H-1 for me. Is the H-4 from the former employer valid for file EAD or do I have to apply for H-4 again and what would be the documents that would I need to file H-4 EAD ?

Answer

Every time the H-1 holder changes  job, the H-4 holder does not need to re -apply for H-4. Your H-4 is good.  You don't have to have different H-4 for the employer. Of course,  every time the H-1 holders change their job they have apply for new H-1 but as long as you never violated status and H-1  holder has  never violated status that H-4 continued to be good from job to job to job, you are good.

Your  second question was what document need to file H-4 EAD?

Answer is we don't  know yet. When the instructions for the new form I- 765 come out along with the form I-765 they will tell you exactly what you need to submit . I suspect probably marriage certificate along with evidence of  couple of last  pay stubs of your husband's, copy of H-1 receipt and a copy of your H-4 receipt or approval or visa stamped. That typically they should be looking for. But I don't have any basis for saying, this is just my guess.