H-4 EAD, ASAP

Recently, the USCIS announced that, effective May 26, 2015, H-4 spouses of “certain” H-1B nonimmigrants will be eligible to apply for Employment Authorization Documents (EADs).  Under the new rule, there are two groups of H-4s who will qualify for EADs:

  1. H-4 spouses of the beneficiary of an approved I-140;
  2. H-4 spouses of those who have been granted H-1B status pursuant to sections 106(a) and (b) of AC21.

For those with an approved I-140 the analysis is easy.  In my experience, knowing whether one has been granted H-1B status pursuant to sections 106(a) and (b) of AC21 (106(a)/(b)) probably requires a consultation with an immigration attorney.

In addition to those who already meet the new rule’s requirements, many H-1Bs who have not yet been granted 106(a)/(b) extensions are currently eligible for the benefit, and with proper guidance their H-4 spouses could be eligible to apply for EADs sooner than they may think.

In short, 106(a)/(b) allow for extensions of H-1B status in one year increments beyond the 6-year maximum H-1B period if a labor certification (PERM) has been filed more than 365 days prior to the end of the H-1B’s 6-year maximum period.  An often underutilized aspect of 106(a)/(b) is that the “one year increment” can be tacked on to any time remaining in the 6 year maximum.  For example, if an H-1B has 2 years left of their 6-year maximum, 106(a)/(b) makes the H-1B potentially eligible for a 3-year extension.

Another common misconception regarding 106(a)/(b) eligibility is the idea that the H-1B’s PERM must have been pending for 365 days before 106(a)/(b) benefits can be requested, which is not the case.  If on the day the PERM is filed the H-1B has more than 365 days left of the 6-year maximum, 106(a)/(b) benefits are immediately available.

Accordingly, many H-1B nonimmigrants whose current H-1B status expires in the relatively distant future are CURRENTLY eligible to file an H-1B extension utilizing 106(a)/(b), the approval of which will trigger H-4 EAD eligibility under the new rule.

The main factor limiting the immediate filing of 106(a)/(b) H-1B extensions is that an H-1B petition requesting a “continuation of previously approved employment” cannot be filed more than 6 months in advance of the H-1B’s current expiration.  An exception to this rule is when an H-1B extension request can also be classified as an “amended” petition, which triggers the ability to file an extension request regardless of when the current H-1B status expires. Examples of when an “amended” petition is appropriate include situations where an H-1B has been promoted, has changed jobs or is at a new worksite location.

What all of this means is that H-1Bs are eligible for a 106(a)/(b) extension if the following conditions are met:

1) A PERM has been filed more than 365 days prior to the H-1B’s 6-year maximum;

2) There is less than 3 years left of the H-1B’s 6-year maximum; and

3) Circumstances are such that an “amended” petition is appropriate.

Here is an example:

After an H-1B’s first three years in H-1B status his or her employer files for a three year extension in which the H-1B’s job title is listed as “Engineer.”  During the H-1B’s fourth year he or she is promoted to “Senior Engineer,” and the H-1B’s employer files a PERM application on his or her behalf.  This individual would be eligible for a three year H-1B extension pursuant to 106(a)/(b) because 1) a PERM has been filed more than 365 days prior to the end of the H-1B’s 6-year maximum, 2) the H-1B has less than 3 years remaining of the 6-year maximum, and 3) because of the promotion the H-1B is eligible to be the beneficiary of an “amended” petition.

Due to PERM processing delays, obtaining an I-140 approval can take years, making 106(a)/(b) extensions critical to many seeking H-4 EAD eligibility.  H-1Bs who have not yet been granted 106(a)/(b) extensions and have spouses who are eager for an EAD should investigate their eligibility for a 106(a)(b) extension.  If action is taken now, thousands of currently ineligible H-4 spouses could be able to apply for EADs on May 26.