USCIS Releases H-4 Spouse EAD Filing Process Clarifications and Guidance

On the eve of the H-4 Spouse EAD filing window (which opens on May 26, 2015), USCIS  has released a set of clarifications and guidance in connection with the H-4 Spouse EAD process.     Our office has been very active in the H-4 Spouse EAD process ever since the benefit was announced as a proposed rule in the summer of 2014 and we welcome USCIS’s providing guidance on a number of key issues.   Please see our separate article regarding eligibility rules and filing mechanics.

Four Outstanding Questions Answered (Mostly)

About a month ago, on April 23, we released a list of four major unanswered questions to USCIS in connection with the H-4 Spouse EAD process.   Specifically, we raised the question as to whether there would be concurrent H-4 status and H-4 EAD approval, whether there will be a way to deal with the “gap” between non-concurrent approval of H-4 status and H-4 EAD work authorization, whether H-4 EAD would apply for H-1B extensions beyond the sixth-year when part of the current H-1B/H-4 term is still within the initial sixth-year term and whether travel internationally during the time H-4 EAD remains pending would affect the process.

We now have answers to almost all of these questions and we appreciate USCIS’s efforts to provide clarifications.

Concurrently-Filed H-4 Change of Status and H-4 Spouse EAD Applications Will Not be Approved Concurrently

USCIS has confirmed that they would permit concurrent filing of H-4 status (change or extension) applications together with H-4 Spouse EAD applications.   In fact, it is now possible to file concurrently H-1B, H-4 and H-4 EAD applications.

However, USCIS is not expected to be able to adjudicate the H-4 EAD application concurrently with the H-4 (and H-1B, if applicable) change or extension of status applications.  USCIS has indicated that they would first adjudicate the underlying H-4 status application (together with any H-1B petition, if any) and only then they would turn to the concurrently-filed H-4 Spouse EAD application.    In this scenario, the 90-day EAD “clock” would not begin until a decision is made on the H-4 status application.

This suggests that there will likely be a significant work authorization gap between H-4 status approval and H-4 EAD approval.   USCIS, in their FAQ document, specifically clarify that the validity of the H-4 EAD will not be “backdated” from the H-4 status approval date and any employment before the H-4 EAD is approved will be considered unauthorized employment and violation of H-4 status.

These gaps in employment authorization are problematic for applicants who are switching from work-authorized status (such as H-1B, F-1 OPT/CPT and similar) to H-4 and are seeking continued work authorization.       We suggest very careful planning of any such H-4 status and H-4 EAD applications to avoid or minimize the period during which there is likely to be a gap in employment authorization.   One possible solution may be to try to file (significantly) ahead of time and request future starting date of the H-4 status and H-4 EAD.    Please contact us if we can analyze your case and provide options.

The H-4 Spouse EAD Will 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

We had raised this question last month and we are glad to see that USCIS addressed it.    USCIS have confirmed that in cases where the primary H-1B and the derivative H-4 period includes a portion of the initial six-year term plus time beyond the six-year term based on PERM or I-140 pending for more than 365 days under AC21 Sections 106(a) and (b), the H-4 EAD validity term will match the validity term of the H-4 status, including any period which is within the initial six-year term.

International Travel When an H-4 EAD Application Remains Pending Is Generally Permitted Without Having to Refile Another H-4 EAD Application After Return to the U.S. As Long as the H-4 EAD Was Filed When the H-4 Holder Was in the U.S.

USCIS has confirmed that the H-4 spouse must be in the U.S. at the time of filing to apply for the H-4 EAD – the reason is that the H-4 holder must be physically in the U.S. in order to provide evidence of H-4 status, which is a requirement.   A person who is outside of the U.S. does not have H-4 “status”.

USCIS has also confirmed that travel outside of the U.S. and reentry on H-4 status are permitted while the I-765 H-4 Spouse EAD application remains pending.   USCIS cautions, however, that H-4 spouses who have filed for EAD must meet all H-4 admission requirements, including having an H-4 visa stamp in their passports.     Additionally, H-4 Spouse EAD applicants who travel during the time their I-765 is pending should understand that if USCIS sends a request for information (request for evidence, RFE, or notice of intent to deny, NOID) on the case, they will need to ensure that the response is submitted timely (often within 30 or 84 days).

USCIS previously indicated that no Application Support Center (ASC) biometrics will be required as part of the H-4 Spouse EAD process.   The FAQ released today seems to contradict this by mentioning that travel while outside of the US may create “delays if