USCIS Expects to Answer FAQs Related to H-4 EAD Rule “Shortly”

Many questions have arisen regarding the new regulation that will allow certain H-4 spouses to apply for employment authorization documents (EADs). Some of these questions still do not have clear answers, even as the May 26, 2015 start date for H-4 EAD filings rapidly approaches. To that end, the U.S. Citizenship and Immigration Services (USCIS) has assured members of the American Immigration Lawyers Association (AILA) that answers to a number of frequently asked questions (FAQs) will be posted “shortly.”

Unresolved H-4 EAD Questions

Pending H-4 Change of Status Cases

It is clear that an otherwise qualified individual who holds H-4 status can request an EAD on or after May 26th. It is also clear that the USCIS will accept concurrent filings, wherein the EAD application is filed at the same time as the H-4 change of status (COS) application. What has not been answered definitively is whether a person with a pending COS application to H-4 can request the EAD. For instance, if an individual filed an I-539 in April requesting a COS to H-4, and that application is still pending on May 26th, can s/he file the EAD application based on the pending I-539? Usually, it is possible to file an EAD application in this type of situation, but the USCIS has not provided specific clarification on this point for H-4 EAD cases.

Travel with EAD Pending

Another question that the USCIS is expected to address is the impact of travel while an H-4 EAD application is pending. Given the standard 90-day processing time for EAD applications, many people are asking about the impact of planned summer travel abroad. Travel typically does not impact an EAD application in other categories. However, stakeholders are still waiting for verification from the USCIS that this will be permitted. Still, even if the USCIS confirms that this is allowed, it should be noted that a biometrics appointment generally is scheduled for the applicant several weeks after an EAD application is filed, and the biometrics can only be done from within the United States.

Note that this issue is separate from the established law on travel with a pending COS. Individuals who travel with a COS to H-4 pending will be deemed to have abandoned the COS application. Thus, if both an H-4 EAD application and a COS application to H-4 are pending when the applicant leaves the U.S., the COS request will be deemed abandoned; and, because the H-4 EAD application cannot be approved until the H-4 status is granted, the pending EAD application cannot be approved in this situation.

Applying for EAD from Abroad

Many H-4 spouses are asking whether the EAD application can be filed from outside the United States. While there is no clear answer to this question, it should be noted that the applicant’s “current immigration status” is requested when filling the application for employment authorization (form I-765). An individual must be in the U.S. in order to be in H-4 status. Further, the revised I-765 instructions specify that the applicant must provide “…documentation of your current H-4 admission or extension of stay.” So, while the USCIS has not yet provided a definitive answer to this question, for the time being, the Murthy Law Firm is generally recommending that applicants wait until arriving in the United States before filing an H-4 EAD application.

Eligibility Criteria and Impact of I-140 Revocation

The regulation allows an H-4 spouse to apply for an EAD if the H1B spouse either (1) is the beneficiary of an approved I-140; or (2) has extended status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act (AC21). The referenced sections of AC21 pertain to the provision that allows for extensions in one-year increments, based upon what is commonly referred to as the 365-day rule. Since these provisions only address the one-year AC21 extensions, there is a significant issue as to the impact of an I-140 revocation on H4 EAD eligibility.

AILA pointed out to the USCIS that initial AC21 extensions often include recapture time, and therefore are somewhat of a combined extension. This raised the question as to whether “… the regulation will permit H-4 spouses to obtain employment authorization if the H1B’s period of authorized stay includes any time authorized under AC21.” The USCIS indicated that this would be answered in the FAQs. We hope that the USCIS can reconcile these issues in a way that does not disadvantage those that were intended to benefit by the H-4 EAD regulation.

Conclusion

The USCIS has yet to provide a date for when the FAQs should be expected, but hopefully these will be posted prior to the May 26th date when the H-4 EAD regulation becomes effective. As soon as any new details emerge, the information will be posted on MurthyDotCom. To remain informed on the H-4 EAD rule, and other matters related to immigration law, please subscribe to the free MurthyBulletin.

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