Certain H-4 Dependent Spouses

Good news.  The Immigration Service (USCIS) announced that starting today, July 13, 2015, it will again accept premium processing requests (Form I-907 Requests for Premium Processing Service) for H-1B extension of stay petitions.

This is ahead of schedule because USCIS had estimated that H-1B extension of stay premium processing would be temporarily suspended until July 27, 2015, due to the need to devote resources to the processing of applications for H-4 work authorization (EADs for certain H-4 Dependent Spouses).

Beginning today, a newly filed H-1B extension of stay petition may again include a premium processing request, and a pending H-1B extension of stay petition may be “upgraded” with the filing of an appropriate I-907 Request for Premium Processing Service.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP and may be reached at cwadhwani@foxrothschild.com.

 

The US Citizenship and Immigration Service (USCIS) has updated its May 19, 2015 alert announcing temporary suspension of premium processing for certain H-1B petitions.  http://www.uscis.gov/news/alerts/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

Here are the highlights:

  • May 26, 2015 – July 27, 2015*:  Premium processing is suspended for all H-1B extension of stay petitions with extremely limited exceptions for cases meeting the narrow expedite criteria.  See USCIS Expedite Criteria webpage.
  • During this suspension period, premium processing will still be honored for:
    • H-1B extension of stay petitions requesting premium processing prior to May 26, 2015 (but be aware that the announcement states:  “USCIS will refund the premium processing fee if:  A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and USCIS did not act on the case within the 15-calendar-day period.”)
    • Change of status H-1B petitions
    • Consular notification H-1B petitions
    • Consular notification H-1B petitions for those who have H-1B status
    • H-1B amendment petitions that do not also request an extension of stay
    • H-1B1 petitions (under the US-Chile and US-Singapore Free-Trade Agreements).

The temporary suspension is intended to enable USCIS to timely implement the Employment Authorization for Certain H-4 Spouses final rule, which became effective on May 26, 2015, and is anticipated to result in “an extremely high volume of Form I-765 applications”.

*USCIS has indicated that it will monitor workloads and if feasible, resume premium processing for H-1B extension petitions prior to July 27, 2015.

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Ms. Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

Reminder:  Effective today, May 26, 2015, the Immigration Service will accept applications for employment authorization from “certain H-4 dependent spouses of H-1B nonimmigrants”. (Employment Authorization for Certain H-4 Dependent Spouses Web page).

An H-4 spouse may only apply for an EAD (employment authorization document) if the H-4’s H-1B spouse is pursuing US permanent residence.  More specifically, the H-4 spouse may not file an EAD application unless the H-1B spouse:

  • Is the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker, OR
  • Has H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (as amended by AC21).

Of course, H-4 status isn’t the only status that an H-1B spouse may hold.  USCIS had previously announced that where a non-H-4 spouse applies for H-4 status, it will first change the status of the qualifying spouse to H-4 and then adjudicate the application for employment authorization. This will add another step to the process and take more time.

Please see my prior post on this topic, “H-4 EAD Applications Accepted Beginning May 26, 2015: Are you that “certain spouse”?” for more information.

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Ms. Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

Are you that “certain someone”?  That “certain spouse” of an H-1B worker who will be eligible for H-4 work authorization?  Not sure?  Here’s the scoop.

At long last, on Wednesday, February 25, 2015, the US Department of Homeland Security (DHS) published a Federal Register Notice captioned, “Employment Authorization for Certain H-4 Dependent Spouses; Final Rule”.   Per the much-awaited Notice, on May 26, 2015 (NOT earlier), USCIS will begin accepting applications from eligible applicants in H-4 status, but H-4 work authorization will not be available to all who hold H-4 status.  The chosen few, those “certain spouses” who will be eligible for H-4 work authorization include:

  • An H-4 spouse of an H-1B worker with an approved I-140, or
  • An H-4 spouse of an H-1B worker who has been granted a 7+ year extension of H-1B time pursuant to AC21 Sections 106(a) and (b).  (Note that an H-4 spouse of an H-1B worker granted a 7+ year extension under AC21 Section 104(c) would be covered under the first bullet point.)

So, not all H-4 dependent spouses will qualify to apply for an H-4 EAD (employment authorization document).  H-4 children are also ineligible.

An H-1B worker who is running out of H-1B time may want to consider whether it makes sense to change to H-4 status and seek work authorization—that is, if married to an H-1B worker who would enable the work authorization criteria to be met. Fortunately, there is a provision for concurrent filing of the H-4 application and the EAD application.

Typically, it takes about 90 days from the date of USCIS receipt of an EAD application for the EAD card to be issued.  It’s not clear whether it will take longer given that there is likely to be a very large number of filings seeking H-4 work authorization.

Careful consideration and strategizing must be undertaken to determine eligibility, the best course of action, and timing.  Please feel free to contact us if you need assistance.

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Ms. Wadhwani is a Partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.