USCIS FAQs Address Many H-4 EAD Questions (Part 1)22 May 2015
As expected, the U.S. Citizenship and Immigration Services (USCIS) issued answers to Frequently Asked Questions (FAQs) on May 20, 2015, regarding the newly-created H-4 employment authorization document (EAD) option. The first part of this two-part article summarizes the most straightforward of the issues addressed in the H-4 EAD FAQs.
Background: H-4 EADs and Open Issues
As explained in the MurthyDotCom NewsBrief, USCIS Expects to Answer FAQs Related to H-4 EAD Rule “Shortly” (01.May.2015), the USCIS needed to address many open questions specific to the H-4 EAD. The regulation permitting certain H-4 holders to obtain an EAD will become effective on May 26, 2015. Readers were alerted to the May 20th issuance of answers to FAQs in the MurthyDotCom NewsFlash, posted that day.
H-4 EAD Application Filing On or After May 26th, 2015
While most individuals interested in the H-4 EAD are aware that filing for the H-4 EAD benefit begins on May 26, 2015, many fear that there is a deadline or limit. This likely stems from experiences with other limited immigration benefits, particularly the H1B category. Fortunately, H-4 EADs are not limited by deadlines or number.
It is important to note the following, as explained in the FAQs:
- The H-4 EAD option is not a one-time opportunity. This benefit can be renewed, as long as individuals are eligible. Filings can be made after May 26, 2015, with no limit or deadline.
- Individuals must be physically in the U.S. in order to file for the H-4 EAD. In order to file, a person must hold H-4 status. Status is only held while the person is in the U.S.
Travel Abroad Permitted for H-4s While EAD Pending
An applicant who holds H-4 status may travel abroad while the EAD is pending. However, the USCIS warns that applicants must answer any requests for evidence (RFEs) or notices of intent to deny (NOIDs), which may be issued on their EAD applications. Failure to respond in a timely manner is likely to lead to a denial of the EAD application.
Avoid Travel Abroad if Filing a Change of Status to H-4
Applicants who have applied for a change to H-4 status, but do not actually hold that status, should avoid travel while the EAD is pending. Travel while a change of status is pending will be deemed as an abandonment of the change of status request with the USCIS and cause the EAD to be denied. (Of course, this does not prohibit individuals from refiling an EAD application after returning to the U.S. in H-4 status and otherwise qualifying for that benefit.)
Work Options: Unrestricted, Can Start Business and Hire Others
The USCIS has confirmed that the H-4 EAD confers unrestricted employment authorization. The authorization is not limited to any particular employer. It can be full time, part time or intermittent. Self-employment is allowed, as is starting one’s own business. If one starts a business, it is permissible to employ other (work-authorized) individuals.
Work Authorization: Not Travel Authorization
People often confuse the EAD with the travel document known as advance parole (AP). The EAD is an employment authorization document, only. It does not provide travel authorization. With the exception of Canadian citizens, individuals need an H-4 visa “stamp” issued by a U.S. consulate abroad in order to reenter the U.S. in H-4 status.
Concurrent Filing Permitted
The USCIS previously confirmed that it will permit the concurrent filing of the H-4 EAD application with an application to change or extend status. The FAQs confirm that it is permissible to file the primary applicant’s H1B extension, along with the concurrently filed H-4 change / extension of status and EAD application.
There is no premium processing option for either the change / extension of status or the EAD application.
Difficult to Match Previously Filed H-4s with the EAD Application
If an individual is awaiting decision on a previously-filed application for change / extension of status (I-539 form), the USCIS suggests that it is best to wait for the decision on the I-539 before filing the EAD application. The reason for this is that the USCIS cannot guarantee that they will be able to match the EAD application with the pending I-539 form.
We note that the USCIS is not saying that H-4 EAD applications cannot be filed based upon pending I-539s. They are simply discouraging such filings at this time, due to the volume of filings expected and the agency’s limited capacity to match up the filings.
The USCIS has clarified many important questions surrounding the H-4 EAD. Additional clarifications on some of the more technical issues addressed by the USCIS FAQs will be addressed in Part 2 of this MurthyDotCom NewsBrief. As with any new process, there are details that will be refined over time. Attorneys at the Murthy Law Firm are helping many H-4 EAD applicants, and will continue to share useful information with readers on their insights and suggestions regarding this process. Check MurthyDotCom regularly, or subscribe to the MurthyBulletin to keep up to date on the latest information.
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