Monday, June 15, 2015

How to effectively use the AC 21 rules for H4 EAD?

AC 21, the American 21st Century Act, which allows certain H1B holders to extend their H1B visa status beyond six years, is also the key rule which is allowing H4 visa holders to obtain an H4 work visa aka H4 EAD. 

The AC 21 famous 2005 memo has regularly been invoked by many who are porting their green card or even those who are transferring on the H1B visa. Now the same rule is being invoked for H4 work permit.

The AC 21 2005 memo is very useful to understand exactly who can port their Green Card without having to start the process over.  Note that a person who has a pending form I-140 with an adjustment of status form I-485 filed can port to a same or similar position after 180 days if there is an approved or an approvable form I-140. If the form I-140 is approved, the employer cannot actually revoke the I-140 after 180 days the I-485 has been filed.

Unfortunately many has misinterpreted this rule to believe that an I-140 cannot be revoked after 180 days.  The truth is that an employer can always revoke the form I-140 even if approved unless you meet the above requirements.  As such you need to make sure that the form I-140 who are relying on for either extension, transfer or H4 EAD has not not been revoked.

It is important to note that an approved non revoked I-140 from any company or EB2, EB3/skilled workers can actually be used for H1B extension, transfer and ultimately to file for a spouse H4 work authorization document (EAD).

Therefore understanding the rule under AC 21 is very important for most people benefiting from employment based visa. Read the memo and inquire about its possibilities.

If you need help on any EB or non EB cases, please call us at 510 742 5887.

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