H-4 Spouse EAD – Four Major Outstanding Questions for USCIS

As our office is gearing up for May 26, 2015 when the first H-4 Spouse EAD applications under the new rule can be filed, we are still looking forward to clarifications and updates from USCIS on a number of important topics.      Here are four major issues which affect a number of H-4 EAD applicants and which issues are still outstanding as of today, about a month before the H-4 Spouse EAD applications can be filed.

When Would the Final Form I-765 (and Accompanying Instructions) be Released?

While USCIS has published the approved draft revision of Form I-765, they have not released the form for general circulation on the relevant Form I-765 website.    As our office is gearing up for a high number of H-4 Spouse EAD applications, we would like to see the revised form released for public use as soon as possible to avoid timely (and calm) H-4 Spouse EAD preparation process.     It is unclear at this time whether USCIS will accept the current version of Form I-765 for H-4 Spouse EAD filings on or after May 26th.

Would Concurrently-Filed H-4 Change of Status and H-4 Spouse EAD Applications be Approved At the Same Time?

A key question for those seeking to change status to H-4 and concurrently be able to obtain work permit is whether USCIS will be able to approve the H-4 change of status (COS) application together with the H-4 Spouse EAD application.     USCIS has indicated that they would accept concurrently filed H-4 COS and H-4 EAD applications; however, there is no much clarity on the mechanics of approval.

This situation poses a problem for applicants who are currently in status authorizing employment and are, in fact, employed.    Ideally, we hope that the H-4 COS and the H-4 EAD applications will be approved at the same time, which would ensure continued work authorization to the applicant and would eliminate disruption to the applicant’s continued employment (which can be costly to the applicant in terms of career reputation and income).

For example, an H-1B worker who is gainfully employed and seeks to transition to H-4 EAD would have to file the H-4 COS and H-4 EAD applications.    However, if the H-4 COS application is approved first while the H-4 EAD remains pending, the person will find themselves in H-4 status but without a work authorization document and they will need to stop working immediately after H-4 COS approval and refrain from working until the H-4 EAD is approved.     We are hoping that USCIS would provide guidance that H-4 COS and H-4 EAD applications which are filed concurrently will be approved at the same time; alternatively, some guidance which would ensure that H-4 EADs approved after the H-4 COS is approved would be backdated with an effective date of the H-4 change of status approval date.

Guidance on this point is critically needed because many H-4 EAD applicants may be exposed to either having to stop working or perhaps engage in a period of unauthorized employment.   We will provide updates as soon as we have any.

Would the H-4 Spouse EAD Be Allowed When the Primary H-1B Spouse Is Extending Beyond the Sixth-Year Maximum But When Part of the New H-1B Term Includes Periods of the Initial Six-Year Term?

This question applies to situations where the H-1B spouse is getting close to the sixth-year H-1B term and when the H-1B employer has filed for extension of (or extended) the H-1B term which extension includes part of the initial six-year H-1B term and H-1B time beyond the sixth-year limit based on PERM or I-140 pending for more than 365 days under AC21.    There is no question that this is permitted for H-1B extensions.

The question is whether the H-4 Spouse EAD rule will allow H-4 spouse to obtain the EAD when the H-1B spouse has a term which includes a combination of H-1B time under the initial six-year H-1B limit and additional time beyond the six-year H-1B limit under AC21.   USCIS has indicated that guidance on this point is forthcoming as part of a FAQ document.  Please stay tuned for updates.

Would International Travel When an H-4 EAD Application Remains Pending Be Permitted Without Having to Refile Another H-4 EAD Application After Return to the U.S.?

Since May 26th coincides generally with the beginning of the summer travel season, many H-4 Spouse EAD applicants have already made travel plans for the May-September period.    We know that the actual H-4 Spouse EAD application will have to include evidence of an applicant’s H-4 status in the U.S. which essentially requires the H-4 EAD applicant to be in the U.S. physically and be able to provide valid I-94 card as evidence.

The question is whether an H-4 Spouse EAD applicant can leave the U.S. after having filed the H-4 EAD application and whether such departure would affect the outcome of the H-4 EAD application and/or the validity of the H-4 EAD document, once approved.    We do not have guidance from USCIS on this point and they have indicated that they will be providing guidance.

We are hopeful that such guidance would match guidance issued in other similar EAD situations – L-2 EAD, E-2 EAD, OPT EAD – where travel during the time an EAD application remains pending does not normally affect the outcome or validity of the actual EAD application.

Conclusion

As we are getting closer to the May 26th H-4 Spouse EAD “opening day” we are hoping for smooth and clear H-4 EAD filing process, especially within the first days and weeks after May 26th.    The new rule still has a number of outstanding issues which require clarifications and we are hoping USICS will be able to provide updates over the next several days.

We will continue to provide information on this rule and answers to these questions as soon as we have anything to share.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.