Alan Lee, Esq. Q&As published on the World Journal Weekly on October 27, 2024:1. To apply for EB-1A, 3 of the 10 criteria must be met

1. To apply for EB-1A, 3 of the 10 criteria must be met

A reader asks:
I have a friend in China who has talked to me about immigration many times. He is 42 years old and is an associate professor of computer science at a 211 university in China (the school should be ranked in the top 50 in the country). He is a cadre in the system, which should be a lifetime system. His annual after-tax income is about 150,000 RMB, plus other five social insurances and one housing fund, about 230,000 RMB. He wants to apply for EB-1A to come to the United States to work as a programmer or other computer-related work. As long as his annual income covers family expenses and he can save 30,000 US dollars, he will be satisfied. He is not a member of the Communist Party. May I ask how long it will take for him to apply for first priority?

Alan Lee Esq. answers,
In your fact situation, your friend is an associate professor of computer science who has good income, wants to apply for EB-1A to come to the US to work as a programmer or other computer related work, and he will be satisfied if his annual income covers family expenses and he can save $30,000 USD. He would not appear to fit within the criteria of EB1A which requires that an applicant have qualifications in 3 of 10 evidence categories to be considered, and if qualifying on 3, is then considered in a merits determination in which USCIS attempts to determine whether he or she has demonstrated national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that he or she is one of that small percentage who has risen to the very top of the field of endeavor. USCIS considers among other criteria whether the applicant has a major award such as the Nobel Prize, or if not three other criteria such as lesser nationally or internationally recognized prizes; membership in associations which require outstanding achievements of members, published material about him or her in professional or major trade publications or other major media; participation as a judge of the work of others in the field; proof of original scientific contributions of major significance in the field; and of the applicant’s authorship of scholarly articles in the field in professional or major trade publications or other major media. Your friend may decide to explore other parts of the US immigration scheme, including temporary worker under H-1B specialized occupation visa or labor certification green card – both of which require a US sponsoring employer.

Article: SHIFTING DATES OF AGE BEING FROZEN AND REFROZEN UNDER THE CSPA AND THE CONSEQUENCES, PART 2.

As published in Lexisnexis.com on October 16, 2024

As Published in the Immigration Daily on October 28, 2024

Part 1 of this two-part article discussed the situation in which the ability to keep a child’s “frozen” age [1]. under the Child Status Protection Act (CSPA) can be impacted by the parent’s failure to “seek to acquire status” during the one year period of visa availability following approval of the petition or even a shorter period of time within the one year if there is interruption of visa availability. This can have dire consequences in disallowing a previously eligible child to immigrate with the parent, forcing the parent to enter the US first as a permanent resident and then petitioning for the aged out child under the F-2B category for unmarried sons or daughters of permanent residents – a process taking approximately 8 years (for the month of November 2024, visa availability under the final action date chart of the visa bulletin is only open for those who filed F-2B petitions prior to 5/1/16 for children born in all countries except Mexico and the Philippines (which have longer wait times).

For the child to retain the original “frozen” date where the parent did not “seek to acquire status” within the time of visa availability including periods of less than a year, USCIS requires a showing of extraordinary circumstances as outlined in part 1 of this article. The Policy Manual Chapter 7 – Child Status Protection Act | USCIS explains that USCIS does not consider commonplace circumstances such as financial difficulty, minor medical conditions, and circumstances within  the applicant’s control (such as when to seek counsel or begin preparing the application package) to be extraordinary.

If attempting to explain extraordinary circumstances through a lawyer’s inaction –that there was ineffective assistance of counsel, USCIS requires the applicant to submit an affidavit explaining in detail the agreement that was entered into with the lawyer regarding the actions to be taken and what information, if any, the lawyer provided to the applicant regarding such actions; demonstrate that the applicant made a good-faith effort to inform the lawyer of the allegations brought against him or her and if the lawyer has been given an opportunity to respond; and that the applicant indicate whether a complaint was filed with the appropriate disciplinary authorities concerning any violations of the lawyer’s legal or ethical responsibilities, or explain why the complaint was not filed.

Assuming that extraordinary circumstances are established, the question becomes what period of time is covered by the circumstances, and whether such would be enough to allow the child’s CSPA age to fall under 21. USCIS gives three examples in the Policy Manual:

  1. There is a break in visa availability of three months and the visa becomes available again seven months later at which time the application to seek to acquire is made immediately. Here the Policy Manual says that the applicant must include an explanation and evidence demonstrating extraordinary circumstance for not applying for the adjustment of status during the first visa availability period, and where USCIS determines as a matter of discretion that extraordinary circumstances are established, it calculates the child’s CSPA age using the date the visa first became available during the three months.
  2. There is a break in visa availability of three months, and becomes available again seven months later, but in this example, the applicant does not seek to acquire when visa availability comes about, and the period of availability stretches from that point for over a year before the applicant acts. The Policy Manual states that the applicant must demonstrate extraordinary circumstances for not seeking to acquire during the first time that the immigrant visa was available in the three months and the second time that the visa was available for an entire year, with USCIS then calculating the applicant’s CSPA age when the visa first became available.
  3. The third example almost mirrors the second (an extra break in visa availability added either intentionally or not) except that the applicant demonstrates extraordinary circumstances for not seeking to acquire during the second period of time of over a year when the visa was available, but does not provide any evidence demonstrating extraordinary circumstances for failing to seek to acquire when the visa first became available during the three months. The Policy Manual states that USCIS would excuse the second period of time to acquire requirement in its discretion and assign the child a CSPA age using the age on the second date that the visa became available since there was no demonstration of extraordinary circumstances for not applying for adjustment of status within the three months.

What can parents do to protect their child for whom a refrozen date may prove catastrophic for the child’s immigration?

If they are not familiar with the monthly visa bulletin of the State Department, they should become adept at reading and following it and not merely rely upon the advice of others. Reading the visa bulletin now requires perusing four charts instead of the two charts of the not so distant past. If in the US and applying for adjustment of status, parents must also be aware of the monthly adjustment charts of USCIS which determine whether the agency is using the “Final Action Dates” or “Dates for Filing” chart – because if it is using the “Dates for Filing” chart, and the immigrant visa is available under the chart for that month, that is the date upon which the seek to acquire duty begins for persons planning to adjust status in the US. It should also be noted that employment-based cases are most prone to USCIS using either chart at different times during the government fiscal year. Family-based cases in recent years have mainly seen use of the “Dates for Filing” chart.

Is there a strategy that can possibly take advantage of the current difference in view of immigrant visa availability between USCIS and the Department of State? This may be possible in limited circumstances.

Prior to the USCIS change in February 2023, both agencies were in lockstep that a visa was available only when the priority date was reached on the “Final Action Dates” chart. Now the State Department still considers an immigrant visa to only be available under that chart (9 FAM 502.1-1 (D) (a) (3) https://fam.state.gov/fam/09FAM/09FAM050201.html despite continual calls by many for the Department to adopt the USCIS interpretation since that would benefit more children to have their priority dates frozen on an earlier date. The dichotomy between USCIS and the State Department views can possibly be explored if the difference in time of the “Dates for Filing” and “Final Action Dates” charts is narrow enough so that the child’s CSPA age remains  under 21 when the “Final Action Dates” chart opens to the priority date. The family could consular process their immigrant visas instead of going through the adjustment of status process in the States. At the time of interview, the consulate or embassy would only look at the “Final Action Dates” chart to determine eligibility of the child on the issue of “sought to acquire”.

So, for example, the child is in the US with a CSPA age of 20 when age is frozen under the “Dates for Filing” chart, but the family does nothing for close to a year when the immigrant visa is available. The “Final Action Dates” chart opens to the priority date the month that the child turns 21. If the family becomes aware of or is already cognizant of CSPA rules, the family then has a choice of a rushed I-485 filing or taking advantage of the fact that for consular processing, the priority date just became current for the first time and that they have one whole year to take action to “seek to acquire” immigrant status. So this family may decide to switch from I-485 to consular processing, have their approved petition sent to the National Visa Center (NVC), and take one of the steps required to satisfy the “sought to acquire” requirement within one year of the priority date becoming current.

Although this is a option that may have risk, especially associated with the time that it may take an approved petition designated for adjustment of status to be sent to the NVC and with the possibility of the “Final Action Dates” chart backlogging and its attendant consequences, this may be a route that parent and child are willing to look at.

It should be noted that, barring an explanation of extraordinary circumstances, this may be the only route for the family in the above situation that fails to file the rushed I-485 and allows one year to expire under the “Dates for Filing” chart.

Summary:

With the USCIS policy alert and Policy Manual now emphasizing the need to prove extraordinary circumstances where the priority date became current and no action was taken during any length of time that the date was open, parents should be aware of how the opening and backlogging of visa categories,  and use of the different visa and adjustment charts of the Department of State and USCIS may adversely affect the ability of the child to immigrate with them and perhaps even become proactive on their child’s behalf.

[1] Age is frozen for a child under the CSPA on the date that an immigrant visa petition is filed in the immediate relative category, or when an I-589 asylum application is filed by the parent, or on the date of the parent’s I-590 refugee interview with a USCIS officer, or when a backlogged immigrant visa petition for a parent is approved and the immigrant visa becomes subsequently available.

Article: SHIFTING DATES OF AGE BEING FROZEN AND REFROZEN UNDER THE CSPA AND THE CONSEQUENCES, PART 1

As published in Lexisnexis.com on October 16, 2024

As published in the Immigration Daily on October 25, 2024

There are two stages to a child turning 21 being entitled to immigrate with the parents under the Child Status Protection Act (CSPA) – being below the age of 21 at the time of final immigration taking into account the addition of time credited while a petition is pending in visa categories having backlogs, and seeking to acquire immigrant status within one year of immigrant visa availability.

In USCIS’s policy alert of September 25, 2024, “Age Calculation under the Child Status Protection Act”, PA-2024-23, 20240925-CSPAAgeCalculation.pdf (uscis.gov) the agency addressed the situation in which a child may have made it age-wise to have his or her age “frozen” before 21 under the CSPA, but possibly losing the “frozen” date where the visa category temporarily becomes unavailable before the child seeks to acquire, and then becomes available again during the one year of visa availability at which time the child takes proper steps to seek to acquire status before the year is out.

USCIS had previously ruled that where an applicant had not sought to acquire status within one full year of immigrant visa availability, the applicant would not be entitled to the first frozen date and only allowed the age on the date on which he or she sought to acquire unless there was a showing of extraordinary circumstances.

The policy alert cites the USCIS Policy Manual Volume 7, Chapter 7, Child Status Protection Act, Chapter 7 – Child Status Protection Act | USCIS which gives in greater detail the significance of seeking to acquire where age is at issue. An example that we can quite readily think of is a child whose parent is immigrating through the EB-3 category for employment-based professionals, and whose child is already 22 years of age, but is able to immigrate with the parent because his or her CSPA age is only 20 years 8 months at the time of visa availability because of the time that it took USCIS to adjudicate the petition. In this case, the parent should take further steps to ensure that the “seek to acquire” requirement is met.

How does one “seek to acquire”? The Policy Manual outlines the different ways:

  • Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);
  • Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS;
  • Paying the immigrant visa fee to DOS;
  • Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);or
  • Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf.

In our example, because of personal or business reasons or slowness of the legal professional handling the case, the parent does not take the further step of seeking to acquire status within 4 months and the EB-3 category unfortunately becomes unavailable and does not become available again until six months later when the child’s CSPA age is 21 and 6 months (if refrozen).

Is the child still able to immigrate? The law allows an applicant to seek to acquire within one full year of visa availability and here the visa was only available for four months. So the child is still allowed time to seek to acquire. But the question is whether the child is still entitled to the first frozen date or whether that date is no longer valid and he or she can only have age frozen again with the date when the parent takes the necessary step to seek to acquire status.

In the policy alert and in the Policy Manual, the applicant must prove extraordinary circumstances to be able to retain the first frozen date. That means being able to prove the reason for which he or she did not apply during the first period of availability, even though it was less than one year.

In looking at the factors of extraordinary circumstances, the Policy Manual lists such factors as showing that:

  • The circumstances were not created by the applicant’s action or inaction;
  • The circumstances directly affected the applicant’s failure to seek to acquire within the 1-year period; and
  • The delay was reasonable under the circumstances.

In giving examples, the manual cites the following:

  • Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period;
  • Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter;
  • Death or serious illness or incapacity of the applicant’s attorney or legal representative or a member of the applicant’s immediate family; and
  • Ineffective assistance of counsel, when certain requirements are met.

The Policy Manual did not limit the reasons to the above.

Thus it appears that a child’s age once frozen under the CSPA is not necessarily permanently frozen, and can become unfrozen and perhaps refrozen with a later date even if the child seeks to acquire within the one-year limit, which may certainly be undesirable to the family if the child’s CSPA age would then exceed 21.

(We will next discuss specific examples as brought forth in the Policy Manual and give suggestions on how to avoid being impacted by age being refrozen in Part 2).

Arthur Lee, Esq. Q&As published on the World Journal Weekly on October 13, 2024: 1. Fing a premium processing for an EB-1 case where you are not sure about the merits of your EB-1 case is not advised 2. In filing the PERM application, you will not need to submit your resume for Department of Labor review 3. When the time for processing at the field office has passed, you may wish to speak to a USCIS contact center

1. Fing a premium processing for an EB-1 case where you are not sure about the merits of your EB-1 case is not advised  

A reader asks:
Considering that Trump’s coming to power is a high probability event, I am a little anxious about my identity issue and am hesitating whether to expedite the EB-1B. The point of hesitation is that my EB-1B case is extremely weak, and I heard that expediting will increase the possibility of rejection. Before, the NIW was approved by TSC. When applying for EB-1B, I changed jobs and moved to NSC territory. I consulted an outside lawyer, who said that the EB-1B case has a chance in TSC, but not in NSC. But since the company lawyer agreed to do it, I must give it a try. I submitted it in early May this year, but it was not expedited when I submitted it, and I did not argue. In early June, the case status was updated from received to being actively reviewed. According to the timeline of about half a year, I-140 will not receive a reply from USCIS following opinions: 1. How long is the current TSC EB-1B case timeline? Is it still half a year? 2. In my case, should the EB-1B case be expedited?

Arthur Lee, Esq. answers,
Per the USCIS website, Texas Service Center is adjudicating 80% of EB-1B cases within 10 months. It may be a good sign in terms of speed of your case that your case status changed to “active review” in June. My suggestion is to stay patient regarding your EB-1B case. I would advise against premium processing for an EB-1 case where you are not sure about the merits of your case. Premium processing service, for whatever reason in recent years, has been known to invite tougher scrutiny in many types of immigration cases—EB-1 included. Anecdotally, many immigration lawyers in recent years have encountered difficult RFEs and NOIDs when filing premium processing for EB-1 cases—even strong cases. Also, I note that your lawyer’s belief that your case has a shot at TSC but not at NSC is very speculative. This may or may not be true, and it is difficult to determine at any given moment which service center is more likely to have tougher adjudicating officers and which ones have more lenient officers. Finally, a Trump presidency would be generally bad for intending immigrants to the US. But EB-1 was not a focus of the previous Trump administration, and will not likely be a focus of scrutiny in an upcoming Trump term. The risks toward your EB-1B petition of filing premium processing, in my belief, far outweigh the risks of a Trump presidency.

2. In filing the PERM application, you will not need to submit your resume for Department of Labor review

A reader asks:
Recently, the company wants to apply for perm, and I need to provide a resume. I have 2 questions: 1. I worked in China for 6 years before and came to the US again. Is it necessary to provide domestic experience? 2. Will the domestic experience be checked? Because the company I used to work for went bankrupt, the company should be deregistered.

Arthur Lee, Esq. answers,
In filing the PERM application, you will not need to submit your resume for Department of Labor review. The resume is likely for the company or company lawyer to help formulate case strategy. There is no need to provide your 6 years working experience in your PERM ETA 9089 application unless that 6 years experience is relevant to your qualifications for your sponsoring company’s position. You only need to disclose your current employment, and other employment relevant to your qualifications for the PERM position. If your experience in China for 6 years was relevant, then you may want to list that experience on the PERM ETA 9089, and obtain an experience verification letter from your China employer. This letter can come from your former manager or human resources, or anybody else you worked with in a responsible position who can attest to your experience. If the company is deregistered and out of business, you can still verify this experience by having a former manager or colleague attest to your experience while explaining that the company is now out of business. You may supplement that letter with an affidavit of your own explaining that you had worked in that position with the China company, but could not get a verification on the company’s official stationery because they went out of business.

3. When the time for processing at the field office has passed, you may wish to speak to a USCIS contact center

A Reader asks:
I applied for EB-1A, and my I-485 has been under for nearly two years. I am anxious again this year, so I have to ask Emma. I don’t understand the reply, please help me interpret it. My I-485 has been transferred to the local FO for a year and a half, and it has been current and stuck in the fingerprint status.

Q: My priority date has arrived, why is it not approved?

Q: Even if your priority date has arrived, if there are not enough visas, your case will still be suspended according to regulations until a visa is available.

Q: So even if I am in the field office now, I don’t have an EB1A visa? Is this what you mean?

A: Your case will continue to be suspended until the officer provides you with a visa number.

Excuse me, why have you not had a visa for almost two years, and shouldn’t there be a lot of EB-1A quotas in the new fiscal year (these two years)? As I said recently, I found that Emma is indeed unreliable. A month later, I asked Emma where my case was. Emma said it was at NBC. I confirmed it again and she said it had always been there, and it had never changed. I thought I had finally been transferred back to NBC from FO. I confirmed it again. She said it had been at FO for a year and a half. Did it just get transferred back? Emma immediately changed her words. Sorry, I misread the document. It was still at FO. It had been a year and a half and it was still at FO.

Arthur Lee, Esq. answers,
for the month of September 2024, the final action date for the EB-1A category is current for most of the world except for natives of China and India whose I-485’s cannot be approved unless their priority dates are earlier than November 1, 2022 and February 1, 2022 respectively. I note that the EB-1A category has backlogged periodically with those two countries in the past, and so you may wish to check your priority date to see if it is now current if you are a native of one of these two. Assuming that the priority date is current, and assuming that the time for processing at the field office has passed, you may wish to speak to a USCIS contact center representative at 1-800-375-5283 to see whether you can obtain more accurate information on the progress of your case.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on October 6, 2024: 1. If your priority date is current, it is best to file your I-485 ASAP 2. Before filing I-485 you should maintain legal status 3. If your I-485 case is past standard processing times, you may wish to contact USCIS 4. Going to school on a visitor visa bars a change of status application 5. It is best to wait until you have your H-1B approval before you leave the U.S. 6. H-1B has not submitted I-140, the spouse cannot work with H-4.

1. If your priority date is current, it is best to file your I-485 ASAP

A reader asks:
Because the company wants to save money or not occupy the H-1B quota, the company wants me to wait as long as possible to get the combo card. My situation is to wait for the scheduled update in September this year to submit I-485 and wait for the combo card. My H-1B expires at the end of September this year. I have two options. Option one is to suspend work until you get the combo card and then continue working. Option two is to apply for an H-1B extension in September. It is estimated that it will take more than half a year to get the combo card approved. It is estimated that the combo card will be activated again in march or April when the combo is released. If H-1B is denied, company checks will not be cashed. I also know that the best solution is to extend the H-1B immediately, but the company wants me to wait. If you think it’s best to apply for H-1B extension first, when is the deadline?

Arthur Lee Esq. answers:
Your deadline to file an H-1B extension would be the date of your H-1B expiration. For instance, if your H-1B status expires on September 30, 2024, your H-1B extension must be received by USCIS on or before September 30, 2024. So long as you properly file your H-1B extension, you will be authorized to work while your H-1B extension is pending adjudication for up to 240 days (typically an H-1B extension takes USCIS 2-4 months to adjudicate). If your company chooses not to file an H-1B extension on your behalf, your best alternative is to file your I-485 and I-765 concurrently as soon as possible. I am unclear as to why you are waiting until September to file your I-485 and I-765 application if your priority date is current. These applications are generally specific to you, and require limited employer participation. I do not understand why your employer would want you to wait as long as possible to receive an EAD too–that is an employment authorization card that would allow you to work for any employer (it is generally in your best interests to work for your sponsoring I-140 employer for a successful I-485 adjudication). As long as your priority date is current, it is best to file your I-485 and I-765 applications ASAP to have flexible work authorization as soon as possible, and to apply before visa retrogression potentially prevents you from filing your case. If your employer does not choose to extend your H-1B, you will not be authorized to work until your I-765 application is approved, but you will have authorization to remain in the US upon filing your I-485. In sum, it is in your best interests to take these actions as soon as possible: (1) file your I-485 as soon as your priority date becomes current, and I-765 if your employer seems unwilling to file your H-1B extension; (2) file your H-1B extension paperwork before your deadline in September.

2. Before filing I-485 you should maintain legal status

A reader asks:
The PD for my immigration application is early 2021. I later changed jobs and had my previous PERM and I-140, but it is now difficult to successfully advertise in the market. If the schedule is up but the PERM has not come down yet, will the PD expire after one year? I heard that I have to file my I-485 one year after PD current.

Arthur Lee Esq. answers:
You should not lose your priority date for adjustment of status purposes through an employment-based petition unless your I-140 is revoked for fraud or misrepresentation by your employer less than 180 days after I-140 approval. Unlike consular processing where you would typically need to file your green card application (DS-260) within one year of NVC notifying you of your priority date becoming current, there is no such regulation regarding I-485 filing. Therefore, you will not likely need to worry about your priority date becoming current for more than 1 year. You just need to ensure that your priority date can be legally retained, and that you will be able to maintain legal status in the US up until the time you file your I-485 application. Good luck to you on your PERM recruitment and adjudication, and the rest of your process. As soon as your PERM ETA 9089 is certified, you should be able to concurrently file a new I-140 / I-485 with a request to retain your old priority date–as long as the visa availability does not retrogress past your old priority date and you have been maintaining legal status.

3. If your I-485 case is past standard processing times, you may wish to contact USCIS

I applied for EB-1, PD is August 2022, but the current cutoff date is already November 2022. My current I-485 status is pending fingerprints taken for half a year. However, USCIS insists that my cut-off date has not been met. What should I do?

Arthur Lee, Esq. answers,
If your priority date has already been reached on “Chart A- Final Action Dates,” your case should be in line to be adjudicated by USCIS. However, you may wish to check standard processing times with respect to your adjudicating field office or service center. If your I-485 case is also past standard processing times, then you may wish to contact USCIS via eRequest or the Contact Center at 1-800-375-5283. If you had received communication from USCIS that your priority date is not yet available, you can reach out to them again and explain that their answer was wrong and ask for another update. USCIS officers do make mistakes in their responses to service requests, so the best thing to do is to continue to follow up until a decision is made, as long as your case is past standard processing times. Best of luck to you.

4. Going to school on a visitor visa bars a change of status application

My EB-1A was approved, Form B has arrived, and I will bring my child to the country in January with a B visa. We originally planned to submit the I-485 in three months, but now Form B is closed. The child has enrolled in a local public school. The school will have a holiday at the end of May and start school in August. My B visa expires at the end of June. Can the children continue to go to school smoothly here?

Arthur Lee, Esq. answers,
If your child is on a B visa, he or she is not allowed to go to school. Going to school on a visitor visa bars a change of status application if USCIS knows of it. Also note that schooling is not allowed until a change of status application is approved. Current published USCIS processing times indicate that 80% of F-1 change of status applications take approximately 4.5 months to reach for adjudication. You may wish to rethink your strategy.

5. It is best to wait until you have your H-1B approval before you leave the U.S. 

A reader asks:
My I-485 application is pending, H-1B will expire in less than a month, and the H-1B extension has been submitted but has not been approved yet. I have a Canadian visa. If I go to Canada to visit, can I get H-1B to return to the US? What are the risks?

Arthur Lee Esq. answers:
If you go to Canada, you will not likely be able to return to the US until your H-1B extension is approved. CBP cannot grant you a new time on an entry that you do not have approval for. It may allow you entry for the balance of time on your present H-1B if you attempt reentry during your present H-1B validity, but not the time afterwards which is not yet approved. In the latter scenario, it is likely that CBP will refuse you at the border and tell you to reattempt entry once you have your H-1B extension approved. Therefore, if you plan to return after H-1B expiration, it is best to wait until you have your H-1B approval before you go to Canada, unless you are truly willing to wait in Canada until your H-1B is approved before making the trip back over Stateside.

6. H-1B has not submitted I-140, the spouse cannot work with H-4.

H-4 has a NIW PD, can I work? But if I submitted an I-140 before marriage, the principal applicant does not have an H-1B, and the partner has an H-1B, but did not submit an I-140 together, in this case, can the principal applicant use the H-4 to work? If the I-140 is submitted together, will there be any difference?

Arthur Lee, Esq. answers,
From your question, my understanding is that you, the principal applicant, submitted an I-140 prior to getting married to your spouse; your spouse has H-1B status, but did not submit an I-140 petition. In this case, you would not likely be able to work on your H-4 status. An H-4 EAD is only conferred to the spouse of an H-1B principal who has an approved I-140, or who has been granted H-1B extension under sections 106(a) or (b) of the AC21. The first condition of your spouse having an approved I-140 is clearly not met. The second condition may be met if your spouse received an H-1B extension past the sixth year due to having a PERM labor certification approved for 365 days or more. If the second condition is met, then you may be able to file for an EAD through a properly filed I-765 application based upon your H-4 status. It does not make a big difference in the H-4 EAD context whether you listed your spouse as a family member in your I-140 petition. You will just need to show that you have an approved I-539 as the H-4 dependent, and give in appropriate documentation of the above described condition relating to your spouse and your marriage in your I-765 application.