FAQs Address Many H-4 EAD Questions (Part 2)10 Jun 2015
As discussed in Part 1 of this article, the U.S. Citizenship and Immigration Services (USCIS) finally published answers to frequently asked questions (FAQs) on May 20, 2015, explaining the new regulation that allows certain H-4 spouses to apply for employment authorization documents (EADs). In this second and final part, MurthyDotCom provides updates on a couple of issues related to the H-4 EAD regulation, while summarizing and analyzing the remaining FAQs released by the USCIS.
New I-765 Form and H-4 EAD Challenge Defeated
Following publication of Part 1 of this article, there have been some key developments related to the H-4 EAD rule. Firstly, the USCIS issued the revised application for employment authorization (form I-765), with changes accommodating the new H-4 EAD category. MurthyDotCom alerted readers to this nick-of-time form publication in a May 22nd NewsFlash. Additionally, the lawsuit challenging the H-4 EAD regulation met with its first defeat. As previously explained, the federal court denied the plaintiff’s motion for a preliminary injunction. The lawsuit is not over, but this was an encouraging sign for H-4 EAD applicants.
Revocation of I-140 Approval: Not Eligible for H-4 EAD
H-4 EAD eligibility exists when the H1B spouse has been granted an extension beyond the six-year limit under the American Competitiveness in the 21st Century Act (AC21) provisions allowing for such extensions in one-year increments. This is often referred to as the 365-day rule. H-4 EAD eligibility also exists if the H1B spouse is the beneficiary of an approved I-140 employer petition. In light of the two options for H-4 EAD eligibility, questions were raised as to whether a person in H-4 status is eligible for work authorization if the USCIS has revoked the H1B spouse’s I-140 petition prior to the adjudication of the EAD. Unfortunately, the answer to this is no. If the USCIS revokes the spouse’s I-140, whether at the request of the employer or on its own initiative, then the H1B spouse is no longer a beneficiary of an approved I-140 petition, as required. Thus, in this situation, unless the H1B spouse obtained an H1B extension under the 365-day provision, the H-4 EAD is not an option.
I-140 Revocation after EAD Approval
In a variation on the FAQ about I-140 revocation, the USCIS addressed what would happen if an I-140 were revoked AFTER a person was granted an H-4 EAD based upon that I-140 approval. The USCIS noted that it has the discretion to revoke the EAD if the beneficiary no longer qualifies for that benefit. This includes a situation in which the principal H1B worker’s I-140 has been revoked by the USCIS.
It should be clarified here that the power to revoke is discretionary. Typically, the EAD would remain valid unless and until a revocation occurs. It would not automatically be revoked or voided when the qualifying I-140 is revoked.
Prior Employer’s I-140 Acceptable
If an applicant is seeking to qualify for an H-4 EAD based on an I-140 approval, the requirements allow for the use of any I-140 approved for the H1B spouse. There is no requirement that the I-140 be filed by the current H1B employer. Of course, prior employers sometimes request I-140 revocation. In that case, as explained above, the revoked I-140 could not be used as a basis for applying for an H-4 EAD.
Duration of the EAD to Match H-4 Status
An H-4 EAD should be issued with a duration that matches the applicant’s H-4 status. However, in the FAQs, the question was raised as to whether the duration of the EAD would be limited in cases where the H-4 EAD is based upon the qualifying AC21, one-year H1B extension.
In many situations, an H1B spouse holds an H1B petition that is valid for some part of the fifth and/or sixth H1B year, plus one more year based on AC21. In this case, it was asked whether the EAD would be granted only for the one-year H1B extension period or for the whole H1B / H-4 period. The USCIS clarified that, as long as the spouse’s H1B extension has been granted under the qualifying AC21 provisions, the EAD will be granted for the full duration of the H-4 status.
Change of Status to H-4 with EAD and Risk of Employment Gap
If an applicant is currently in a work-authorized status, such as H1B, but wishes to change to H-4 status in order to obtain an EAD, which allows much greater flexibility in work options, this may create gap in employment authorization. The H-4 change of status request must be granted before the USCIS may approve a corresponding EAD application; and, once an individual moves to H-4 status, the EAD is necessary in order to continue working.
Unfortunately, the USCIS will not backdate EAD approvals to the date of the H-4 change-of-status approval. Therefore, it is possible that a gap in employment authorization will occur. The USCIS did not address the length of delay applicants should expect between the granting of a change of status and the issuance of an EAD. Rather, the USCIS merely referenced standard processing times and procedures.
The FAQs are quite helpful and more information should become available as the USCIS continues to process these EAD applications. Attorneys at the Murthy Law Firm are closely monitoring how these H-4 EAD applications are being processed and MurthyDotCom will post updates as additional details emerge. Stay informed on the latest H-4 EAD news, and other matters of immigration law, by subscribing to the free MurthyBulletin.
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