New Employment Eligibility for H4 Spouses of H1B Holders

June 2015

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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Law office of Alena Shautsova launched a new website dedicated exclusively to issues of Labor and Employment law: http://www.workharassmentattorneys.com/. The new website contains active employment law blog, as well as publications of recent achievements and news articles. As always, questions and comments are welcomed at office@shausova.com or via 917-885-2261.

Employment Authorization for Spouses of H1B Holders

Author: Employment Immigration attorney Alena Shautsova

On May 26, 2015 USCIS started to accept employment authorization applications, form I 765, by certain spouses of H1B visa holders. Traditionally, spouses of H1B visa holders, H4 dependents, were not eligible for an employment authorization. As one of the measures by the President aimed to improve the U.S. Immigration system, USCIS for the first time allowed certain spouses of H1B holders to file for an employment authorization. To qualify, an H4 status holder has to have a spouse who:

Has an approved I-140 filed on his/her behalf; or

Received an approval of an application to extend the 6 years limit on H1B pursuant to American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).

USCIS created a new employment eligibility category for these H4 dependents, C 26. USCIS also updated its I-765 form to be used by the new applicants. If noth of the spouses are on H1B, one can file to change status to H4 now and accept any employment: it does not have to be tied to a specific employer (unlike employment for persons in H1B status). H4 holders of the EAD may also open their own business.

The new applicants must be in the U.S. to file their applications, and may refile if the eligibility still exists.

The EAD issued should be valid for as long as the H4 status is valid. In addition, persons whose H4 status is expiring, may file for its extension and an EAD 6 months prior to the status’ expiration.

Note: EAD will not be valid for travels abroad. It can be used, however, as a form of identification. Importantly, if application for EAD was filed concurrently with an application to change/extend status, travel abroad during the pendency of such applications will terminate them, hence, terminating application for the EAD as well.

SUCCESS STORY: ASYLUM WIN FOR UKRAINIAN NATIONAL WITH MISSED FILING DEADLINE

U.S. Immigration law is sometimes unforgiven to those who fail to comply with its requirements. One of the drastic examples of this is when an asylum seeker misses the one year filing deadline: a person who fails to submit necessary paperwork within the one year of arrival to the U.S. is barred from receiving asylum in the U.S., and hence, loses the chance to become permanent resident through asylum.

The law does provide for a very limited number of exceptions to the one year filing deadline (http://www.shautsova.com/law-publications/file-asylum-application-after-deadline.html#.VW0EG0aGNNg). In practice, however, such exceptions are very challenging to obtain. Only in the most serious cases and compelling cases, the missed deadline will be restored.

That is why we are especially pleased to report, that in one of such cases, the applicant was able to convince USCIS to restore the deadline, even though the application was filed more than two years after the person’s entry into the U.S. The applicant is a Ukrainian national, who for variety to reasons was not able to comply with the deadline. At the asylum interview, Ms. Shautsova was able to successfully show, that in addition to the other reasons, the applicant’s country conditions had changed so that the filing time should be now restored and applicant’s case should be considered as a valid case for asylum. After submission of additionalmaterials to USCIS Asylum office, the applicant shortly picked up an “approval notice.” Without doubt, the decision by Asylum office to restore the deadline is only just and right, which finally ended more than four year “status” waiting for our client.