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How can an H4 visa holder and EB-5 applicant gain work authorization in the United States while he waits for his visa number?

Our I-526 was approved in April 2016 and our Priority Date was December 2014. So, our visa numbers are not available yet as we are mainland Chinese nationals. I have an H-1B and my husband has an H4 that has been effective since October 2016. As such, my husband does not have work authorization. What can I do to help my husband get the work authorization as soon as possible? According to the latest Visa Bulletins, the possibility of getting our visa numbers next year is slim, so we are considering getting visas via the EB-2 or EB-3 program. Can I request that my employer file an I-140 for me and my husband through EB-2/EB-3? Can we only file for I-140 and I-765 for the EAD card so my husband can work while we still wait for our EB5 priority date to be current?

Answers

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    Answered on

    Your H-4 spouse may be eligible to apply for an employment authorization document to work in the United States if your employer sponsors you for permanent residence in the U.S., files labor certification (PERM) and then the I-140, which needs to be approved. This, unfortunately, will not be a speedy process.

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    Answered on

    As you indicated, given the backlog for EB-5 visa numbers, while you and your husband can maintain status, only you (as an H-1B visa holder) have work authorization and your husband (being in H-4) status does not. Depending on your eligibility, yes, you could request that your employer sponsor you for Permanent Residency under the EB-2 classification. However, as of October 2017, employment-based numbers are not available for Chinese nationals and there is a backlog of at least 4 years. So, even if your employer is willing to sponsor you, it would not necessarily speed up the process that much. Nevertheless, it is advisable for your employer to sponsor you; otherwise, you will run out of H-1B time. Your employer should file prior to the end of your 5th year an individual Labor Certification or Permanent Employment Certification for you or, if eligible, an I-140 petition qualifying you as a person of extraordinary ability or a National Interest Waiver or a Schedule II case. The key is that your employer''s I-140 petition be filed no later than before the end of your 5th year of H-1B status.

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    Answered on

    The Form I-765 is part of the Form I-485, Adjustment of Status, package.

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    Answered on

    Be sure to file a labor certification before your sixth year and you will be able to extend your H-1B until your priority date is current. This way, you can immigrate through the appropriate category, EB-2 or EB-3, as it applies to your situation, given an interested employer to file both the labor certification and the immigrant visa petition. The first Priority Date that will become current, whether it be EB-5, EB-2 or EB-3 is the one you will immigrate through. Sadly, the labor certification that precedes the EB-2 and EB-3 filings extends H-1B, not EB-5.

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    Answered on

    If your employer files a labor certification and then an I-140, your spouse currently can apply for an EAD as an H-4 whose spouse has an I-140 approval.

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    Answered on

    Filing an EB-2/EB-3 case will take about a year as the employer will have to do local, U.S. recruitment to show that he does not have any or enough U.S. workers with the skills that your husband (or you) has before filing the Labor Certification application to start the process. Before an employer can even do this recruitment, they must obtain the Prevailing Wage Determination request, which takes 2-4 months to be issued. Then, the recruitment period takes about another 2 months before an LC application could even be filed. Even after all that and I-140 is approved, the Priority Date for mainland Chinese for EB-2 and EB-3 is even slower than EB-5. Thus, there is little you could do to have him working until your EB-5 case becomes current and you could file the I-485 to adjust status for you both. Once the I-485 packet is filed, USCIS will issue the EAD within 90 days.

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