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Immigration Issues/PERM Audit and H4 EAD

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Question
QUESTION: Hi Ajay,

Request your advice on my case:

Here are the facts regarding my husband's immigration status:
Currently on H1B - already used 4 years 2 months of total 6 years
Application for PERM - ETA Form 9089 - filed on September 21, 2014
Case picked up for Audit review - March 16, 2015

My immigration status:
Currently working on OPT which will end on July 22, 2015
H1B not picked in lottery

My query is:
What is the earliest time my husband can apply for my H4 EAD?

Regards,

Pooja

ANSWER: Hi,

Your H4 (without EAD request) can be filed anytime. Unless your husband's I-140 is approved earlier, your H4 EAD application can be filed no earlier than concurrently with your husband's H1B extension petition requesting H1B extension of status beyond 6 years based on pending PERM for at least 365 days. If the PERM audit does not result in PERM approval, it will no longer be "pending", unfortunately.

---------- FOLLOW-UP ----------

QUESTION: Hi Ajay,

Thanks for your response. I have two follow-up questions:

1) My understanding was that my husband can apply for my EAD on September 21, 2015 based on the fact that his PERM that was picked in audit on was originally filed on September 21, 2014 and a period of 365 days will be over by September 21, 2015.

2) If my husband has used only 4 years and 2 months of total 6 years period, how soon can he file H1B extension petition requesting H1B extension of status beyond 6 years.

Regards,

Pooja

Answer
Hi Pooja,

First of all, you are the applicant for EAD, not your husband (you will sign the EAD application form, as well as the application to change status to H4). I stand by my initial response regarding EAD application, specifically no earlier than concurrently with your husband's H1B extension petition requesting H1B extension of status beyond 6 years based on pending PERM for at least 365 days.

Your husband's H1B employer can only file its H1B petition requesting extension of your husband's H1B status under AC21 no earlier than 180 days prior to expiration of his H1B status (I-94 expiration date).

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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