H1 extension with H1 to H4 EAD conversion concurrently

As you already know, last year USCIS started allowing dependents of certain H1b visa holders with approved I140 eligibility to work with a EAD. And along with the EAD application, the rule also lets people on other visas to apply Change Of Status (COS) to H4 visa. So, many spouses on H1b visa want to take advantage of this COS. Because, EAD offers more flexibility than a H1b visa does. For example, EAD doesn’t have restriction on the type of jobs that needs to be performed or restriction on the number of jobs one can perform. And if one is more enterprising they can also start their own business. Also, it doesn’t restrict on the continuity of a job, i.e., one can take a break and restart work after a break with no restriction as long as the primary H1b visa is still valid.

However, even with all these advantages, the response to the H4 EAD has been lukewarm as reported by USCIS. The number of applicants has been lower than initially anticipated. But, still there are lots of people out there who wants to convert from H1b or even F1 visa to H4 EAD. And for most people who are already working, they want to make this transition as seamless as possible. This post describes how to apply COS with minimal disruption to your work.

First, we need to understand all of the steps involved

  • H1(or another visa) to H4 change of status needs to filed (form I-539)
  • EAD needs to be applied for the new H4 status (form I-765)

Independently, the above steps are time consuming steps. However, as mentioned earlier the steps can be combined. You can send all the necessary forms and supporting documents to USCIS as one packet and USCIS is able to process them concurrently. Event with concurrent processing, it may take up to 90 days for USCIS to process your application. And currently USCIS doesn’t offer premium processing to expedite the process.

However, if your primary H1b applicant is applying for an extension you may be in luck. Because, you can combine your COS and EAD with the primary H1b’s extension application with a premium processing. Even though there is no rule to process all the three concurrently, USCIS in practise processes all the 3 steps within the premium processing window which is 2 weeks.

To summarize, these are the steps you can accomplish in parallel

  • H1b extension of the primary applicant
  • H1(or another visa) to H4 change of status needs to filed (form I-539)
  • EAD needs to be applied for the new H4 status (form I-765)
  • Premium processing for the H1b extension

The key here is to send all these applications in one packet to USCIS. Your employer is the one who will file for H1b extensions. So you can fill the COS and EAD forms and request your employer to include them as part of the package. If the would be dependent is already working then, the COS dates and EAD can be requested for a future date in line with the expiry of current H1b visa. So, they can continue to work on H1 until H4 becomes effective and at that point, your EAD should have started. Unless there are other issues like RFE etc, there should be no break in their work.

And this process is not restricted to just H1 to H4 visa COS. You can also change from other visa types like F1 to H4. And people have found success by combining with H1 extension, but also with H1b amendments (Change of location etc).

Here is an time line to give you an idea from such a similar application.

  • 10/05/2016 Sent primary’s H1b extension, dependent’s F1 to H4 COS, EAD application, premium processing in one packet
  • 10/10/2016 Received receipt notice for H1 extension
  • 10/12/2016 Received two separate receipts, one for H4 and another for H4 EAD
  • 10/18/2016 All the 3 got approved
  • 10/24/2016 Received approval notice for H1b
  • 10/27/2016 Received approval notices for the other 2
  • 11/25/2016 EAD Card received

Hope this is helpful for people who are in the same boat. And remember, USCIS does all within the premium processing window as a courtesy, so your mileage may vary.

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How to request FOIA from USCIS

One aspect of the US immigration system is it’s complex. And like many areas of law there are many nuances. Occasionally, you may run into situation where you don’t have access to your own immigration documents or your employer is not willing to sharing them. Typically, not all employers share with employees their employer sponsored visas and green card records. Or you may not have access to family sponsored green card records. Or you may simply need historical immigration documents for your own record keeping.

And luckily, US has a law called Freedom of Information Act (FOIA) which gives you right of access to your documents within the branches of government. And most agencies of government come under this including the U.S. Citizenship and Immigration Services (USCIS). USCIS is one of the immigration agencies under the Department of Homeland Security(DHS) and it holds number of important information about an immigrant. To help you obtain your documents, USCIS has a well defined process on how to make a FOIA request.

But, before you prepare your FOIA requests, make sure you are using the FOIA for the right purposes and the type of documents you are requesting is maintained by USCIS. USCIS is generally the records keeper of immigrations applications for visas, green card etc. Port of entry details for example are maintained by Customs and Border Protection (CBP). While in some cases USCIS has access to records from other adjacent agencies, it’s better to contact the agency directly. And FOIA cannot be used to ask for status of your pending USCIS immigration applications. And it cannot be used to get original documents either. FOIA also has exemptions. For example, documents pertaining to national security concerns cannot be released.

With the basics of USCIS FOIA out of the way, Let’s see how to make the application. Making the application is a simple 3 step process, although there may be nuances while filling the forms.

Step 1: Prepare for the application

Determine what documents you need from USCIS. That and beside your basic information, You would typically need for filling the form.

  • Your Recent I-94 lookup on DHS site
  • Alien Registration Number (A-Number) (optional)
  • Application, Petition, or Request Receipt Number (optional): This could be any of you receipt number of your petitions like H1b I-129, I-140, I-130. etc
  • Id proof: For example, Copy of your license or state id

While USCIS mentions most of the above as optional information, it’s better to give as much information as possible to make it easy to identify the information you are requesting.

Step 2: Fill Form G 639

USCIS prefers the form G-639 to be used for FOIA. Get an overview of the form

Step 3: Send the form

Sign the form under perjury (Summary: You agree to face consequences under US laws, if the application contains wrong information. Formal explanation) or Sign before a Notary, with necessary documents. Email to form to [email protected] Attach any additional documents that you want to send.

What happens after that? You will receive a control number with-in 2 weeks with which you can track your status You will receive a CD with documents to your address.

Have more questions? Here is the list of frequently asked questions,

What is FOIA?

The Freedom of Information Act (FOIA) is a law that gives you the right to access information from the federal government. So, people have been using FOIA to request their I140 documents. More information in wiki

What types of documents can be requested from USCIS via FOIA?

USCIS holds records pertaining to your visa, green card petitions etc. So, what that means is you can request details about your H1b petition filed on your behalf by your employer. You can also request your green card labor certifications, I-140 petition filed by your employer. Similarly, your family based green card petition (I-130) can be requested. You could request your complete A-file too if you want to get all the information USCIS has.

Can I file FOIA to get information about my friend?

FOIA allows for exemptions for reasons including privacy concerns of the individuals involved. Thus, it may be possible to obtain copies your own records, but not the records of a friend or ex-spouse.

I lost my original documents, can I request the originals through FOIA?

No. FOIA can be used to request copies of your documents. And most likely USCIS will send you a soft copy in a CD. So, talk to your attorney for means to obtain your original documents.

Will my employer know about my I140 FOIA request to USCIS?

No. FOIA request ensures privacy. Your employer or their attorneys won’t know that you have contacted USCIS to get your immigration documents.

My employer didn’t share either my I140 case number or approval number. Is it still possible to apply?

Yes. It is possible to request I140 with just basic information like your name, passport number, latest I94 number etc.

Will the document provided by USCIS sufficient to port my green card priority date or apply for H1b extensions?

Yes. USCIS sends a copy of I140 application with approval stamp which should be sufficient.

How long does USCIS take to respond?

USCIS follows a three-track system. How sooner USCIS processes your request depends on the complexity of the document requested. USCIS maintains a “A-file” or Alien-file with all information pertaining to your immigration history. If you request for the complete A-File it most likely go into track 3 and might take several months to a year or even more. But if you are requesting selected documents within the A-file like your green card petition or H1b petitions or labor certification documents, most likely those will go into the simple track. At the time of writing this simple track takes about a month to process. Anything between the two is slotted in the middle track.

For current wait times, check here

I am in a hurry, Can I expedite the process with USCIS?

USCIS may accept to expedite certain requests on a case by case basis for valid reasons like when your life is at stake or your are facing trial before a judge. In other urgent cases, you can attach a cover letter about your situation. And USCIS officials may make an effort to expedite the process. But, It’s not guaranteed, hence it’s better to plan ahead.

Is there a filing fee?

Generally no for non-commercial uses. But if USCIS determines that the cost of producing the data is expensive they will contact you. Typically USCIS can charge a fee upto $25.

OK I am ready to file. What are the steps to request the I140 information?

You will have to fill the latest G639 form. Check g 639 instructions of this blog has more information.

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Parents visting US things to take care

Parents visiting the US? It may be exciting and daunting at the same time, especially for those who travel for the first time. Here is a checklist to make the trip as smooth as possible,

  • Buy health insurance in advance. You can buy it in the US or from the home countries. And the ones that cover them during the travel is better. Keep them handy during travel.

  • Necessary medicines along with doctor’s prescriptions.

  • Arrange for sufficient US dollars. Carrying small denominations will be useful if renting a cart in the airport etc. Carrying a prepaid credit/debit card can also be considered as a backup

  • Consider buying a cell phone with international roaming. This could be from their home countries. Or alternatively, a sim from the US with roaming can be activated and mailed to them. A simple full sized sim on a feature phone is more reliable than a smart phone. And they are cheap too!

  • Blankets can be handy, to be used during the flight or even in the airport when the situation arises.

  • Cheat sheet: One of my colleague creates a cheat sheet with common requests printed like “I need water”, “I am flying to New Jersey”, “I need vegetarian food” etc. This is handy for people who are not fluent in English. They can point at the appropriate requests depending upon the situations

  • Flight reservation should have at least 4 hours for transit. Otherwise, there is no room for error.

  • It’s better to avoid the last flight of the day during a transit. Worst case, when a flight is missed, airlines try to arrange for next flights. And that may happen to be the on the following day. Then one is forced to spend the night in the airport. Not a pleasant experience :(.

  • Try to get a travel companion who can assist at least during the transits at the least.

  • Wheelchair assistance can be added during flight reservation and the same can be confirmed a day before the flight from the airlines.

  • Arrange for appropriate meal preferences during the flight.

  • Arrange for preferred seat options like aisle, window etc for all the legs of the trip.

  • All the necessary visa documents, passports and supporting documents should be carried. This one is obvious.

  • Flight tickets, boarding passes and baggage claim stickers are the ones not to forget.

  • Port of entry: Familiarize them with the process, and be ready to answer about the class of visa, purpose of visit, destination etc.

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