H-4 EAD FAQs

Protecting immigration status: Traveling with advance parole, divorce proceedings, and an entrepreneur on an H-1B visa

Authored on: Thu, 04/21/2022 - 05:35

Question

1. I-140 didn't get approved but received a GC-EAD card approved for 2-years along with advance parole. Is it fine to travel to India for 2 months or for how long staying from the US is valid while on EAD?
2. I didn't need to worry about having a valid visa while returning to the USA, just advance parole will suffice for return?
3. Prior to getting GC-EAD I was on H4-EAD, due to family issues I may seek a divorce. Now that I have GC-EAD will divorce affect my current status or upcoming Green Card? or should I wait until the Green card is through?
4. I have been an Owner of an Inc company while on H-1 and H-4 and H-4 EAD, but I haven't taken any profits or pay-stubs, except for signing on Company Tax returns. Does this situation restrict me from getting a Green Card? or since I have already received GC-EAD under the EB3 category, should I stay positive that I will receive GC in the near future?
 

Answer

Video URL

Are you eligible to become a naturalized US citizen?

Authored on: Wed, 01/26/2022 - 04:04

Question

1. My Son was born in February 2020 in the USA, where my wife is on an F1 visa working on OPT. Due to the Covid19 pandemic, I couldn't meet my son for two years. Kindly suggest to me the way forward to meet my son and wife. I also tried to travel on a tourist visa and F1 Visa. Unfortunately, I got both rejections. I'm an Indian taxpayer and an IT employee. 

2. My brother is a US citizen, and he applied for our mother's green card. Everything is clear, all paperwork is done, but due to the pandemic, we are waiting for the interview date from March 2021. Do you have any information on how we get the date or how much time it will take?

3. My daughter is in Dallas, US, and under medical treatment. She is there with an IN40 visa. As a father, I want to be there during her medical urgency. How can I get a visa now to be with her in the US?

4. I am a US citizen currently in India. I am traveling back to the States in mid-February for two months and want to take my Indian-citizen senior citizen mother with me for that duration. Her last US tourist visa expired eight years ago. (She has an active Schengen visa on her passport) Is there a way she can get a short-term two-month visa to the US?

5. I stayed outside of the US for more than two years because of COVID-19. Am I eligible for naturalization? I came to the USA in August 2016.

 

Answer

*Please note that the queries have been put together and edited by the Economic Times to address similar questions at once and that the answers are clear and relevant to the audience.

1. My Son was born in February 2020 in the USA, where my wife is on an F1 visa working on OPT. Due to the Covid19 pandemic, I couldn't meet my son for two years. Kindly suggest to me the way forward to meet my son and wife. I also tried to travel on a tourist visa and F1 Visa. Unfortunately, I got both rejections. I'm an Indian taxpayer and an IT employee. 

You seem to be referring to a visa denial under Immigration and Nationality Act, section 214(b).

This law applies only to nonimmigrant visa categories. If you are refused a visa under section 214(b), it means that you did not overcome the presumption of immigrant intent required by law by sufficiently demonstrating that you have strong ties to your home country. Such ties are seen as a reason you will not be tempted to exceed your allowed stay in the USA.

When your spouse is already in the US, your ties to your home country are difficult to demonstrate. If you feel there is additional information that should be considered related to the visa decision, or there are significant changes in your circumstances since your last application, you may reapply for a visa. Note that visas like H-1, H-4 (if your spouse gets an H-1), and L-1 are immune from this problem. So, when your wife obtains an H-1B status, or you can qualify for an L-1 visa, you should not have the section 214(b) denials impede your visa.

2. My brother is a US citizen, and he applied for our mother's green card. Everything is clear, all paperwork is done, but due to the pandemic, we are waiting for the interview date from March 2021. Do you have any information on how we get the date or how much time it will take?

Because of the resurgence of the pandemic and a huge backlog of cases, it is unlikely we will see an immediate resolution of the delays. But consulates have indicated that give preference to families of immediate relatives, like parents, of US citizens. Also, the US consulates have started waiving some nonimmigrant visa interviews, which should streamline their operations for green cards as well.

3. My daughter is in Dallas, US, and under medical treatment. She is there with an IN40 visa. As a father, I want to be there during her medical urgency. How can I get a visa now to be with her in the US?

I am not sure what type of visa your daughter has, but your choice appears to be the same as for any other foreign national, a B visa. The consulates usually issue a B-1/B-2 visa or a B-1 visa for medical issues and attending family members.

4. I am a US citizen currently in India. I am traveling back to the States in mid-February for two months and want to take my Indian-citizen senior citizen mother with me for that duration. Her last US tourist visa expired eight years ago. (She has an active Schengen visa on her passport) Is there a way she can get a short-term two-month visa to the US?

You will have to apply for her tourist visa again.

5. I stayed outside of the US for more than two years because of COVID-19. Am I eligible for naturalization? I came to the USA in August 2016.

It appears that the continuity of your stay required for naturalization has been broken by an absence of one year. An absence from the United States for a continuous period of 1 year or more (365 days or more) will automatically break the continuity of residence. It appears you could apply after 4 years and one day after returning, or easier, 4 years and 6 months after returning. The USCIS provides the following example for your situation:

“An applicant for naturalization under INA 316 departs the United States on January 1, 2010, and returns January 2, 2011. The applicant has been outside the United States for exactly 1 year (365 days) and has therefore broken the continuity of his or her residence in the United States. The applicant must wait until at least January 3, 2015, to apply for naturalization, when the 5-year statutory period immediately preceding the application will date back to January 3, 2010. At that time, although the applicant will have been absent from the United States for less than 1 year during the statutory period, the applicant will still have been absent from the United States for more than 6 months (180 days) during the statutory period and may be eligible for naturalization if he or she successfully rebuts the presumption that he or she has broken the continuity of her residence.

If the applicant cannot overcome the presumption of a break in the continuity of his or her residence, the applicant must wait until at least July 6, 2015, to apply for naturalization, when the 5-year statutory period immediately preceding the application will date back to July 6, 2010. During the 5-year period of July 6, 2010 to July 6, 2015, assuming the applicant did not make any additional trips outside the United States that would cause USCIS to presume a break in continuity of residence, the applicant was only absent from the United States between July 6, 2010 and January 2, 2011, a period that is not more than 6 months. Therefore, no presumption of a break in continuous residence applies.”

Extension of EAD for H-4 and EAD for L-2

Authored on: Thu, 12/02/2021 - 02:27

Question

I am on my H-1B and my wife is currently on her H-4. With the new bill does she still need to wait for my I-140 to be approved?

Answer

There is no new bill, just a policy clarification. And, yes, she will have to wait per the law.

H-1B visa expired - Travel to the U.S. based on daughter's U.S. passport

Authored on: Tue, 09/21/2021 - 05:56

Question

We are currently in India, and one of my daughters is a U.S. citizen by birth. However, our H-1B visa expired a few years ago. So now we do not have any valid U.S. visas. Can we travel to the U.S. now based on my daughter's U.S. passport? Please advise as we heard many such parents are traveling like this, Are there any options for us?

 

Answer

You cannot reenter the USA without a visa.  Having a US citizen child exempts you from the travel ban, but not from the visa requirements.

 

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-are-you-q…
 

 

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...

 

 

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 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...



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.