The Who, What, and When of H-4 EADs

October 12, 2022
Chandni Shah

As the processing times for Employment Authorization Document (EAD) applications continue to vary greatly and the option for premium processing remains uncertain, foreign employees are often left feeling unsure and anxious about potential gaps in work authorization. H-4 EAD holders are left with questions regarding when they may file for an EAD extension and when it will be adjudicated.

Who may file for an H-4 EAD and how long is the validity period?

The spouse of an H-1B visa holder with an approved I-140, Immigrant Petition for Alien Worker, may apply for employment authorization by filing Form I-765, Application for Employment Authorization . The dates of H-4 employment authorization validity are dependent on the H-1B spouse’s H-1B validity dates and cannot surpass the H-1B spouse’s expiration date listed on their I-797A approval; Nevertheless, the validity period of an EAD may be shorter than the H-1B spouse’s dates and thus it is important to be aware of EAD validity period. Merely holding an H-4 visa does not grant automatic work authorization; you must apply for it.

When can I file for an H-4 EAD Extension and Automatic Extensions?

H-4 EAD extensions may only be filed 180 days, or approximately 6 months, in advance of an EAD expiration if being filed with the H-4 extension. If one’s EAD extension takes more than 6 months for adjudication, they may face a gap in their work authorization as the current processing times are between 5 and 9 months. Unlike H-1B extensions, historically H-4 EAD holders were not granted an automatic extension where merely a timely filed extension would allow for continued work authorization.

However, on November 10, 2021, United States Citizenship and Immigration Services (USCIS) updated its policy related to H-4 EAD applications and starting January 1, 2022 certain applicants may qualify for an automatic extension while their EAD extension is pending if the following factors are present:

  1. The EAD extension was timely filed prior to the expiration of the current EAD; and
  2. The applicant has an unexpired I-94 indicating their H-4 status.

If both factors are present, the H-4 visa holder may obtain up to a 540-day automatic extension past the date of the employment authorization expiration.

Yet, the problem generally arises when an H-4 visa holder also has an expiring I-94 and therefore does not qualify for the automatic extension past the expiration date of their I-94. Nonetheless, there are a few strategies for extending one’s I-94 expiration date:

  1. Apply for an H-4 and EAD extension with the USCIS. USCIS generally is approving H-4 applications prior to the EAD applications, with processing times for H-4 with pending EAD applications at around 4-5months. This means that once the H-4 is approved, the H-4 holder may work on the EAD receipt notice while it continues to be pending for up to an additional 540 days beyond the EAD expiration date and up to the I-94 H-4 expiration date. Processing times can change month to month so there is no guarantee that the H-4 will be approved prior to the expiration of one’s current I-94 or EAD.
  2. Extend one’s H-4 status abroad at a U.S. embassy or consulate and then apply for admission at a U.S. port of entry. An H-4 EAD holder may choose this strategy if their H-1B spouse has already obtained an H-1B extension and the H-4 dependent spouse is willing to travel abroad and entering the U.S. to obtain a new I-94 via US Customs and Border Patrol.

It is important to consult your immigration attorney prior to any travel abroad so they may advise you on the best route for your particular situation. Additionally, an I-94 expiration date issued by CBP is dependent on the validity date of the H-1B spouse’s I-797 approval notice or the expiration of the H-4 dependent spouse’s passport expiration date, whichever is earlier. Accordingly, please be sure to examine your I-94 upon entering the United States.

H-4 EAD Expedite Requests

In extremely limited cases, where an EAD application is outside of “normal processing times”, it is possible to place an expedite request if an H-4 EAD holder and their employer can provide compelling evidence as to why it is immediately and critically necessary for the employee to maintain continued work authorization. These requests, however, are only approved on a limited basis and is at the discretion of the reviewing officer.

At MMH, we understand the anxiety and strain on one’s lifestyle and family that a lack of work authorization can bring. Please reach out to the attorneys at MMH if you or your family members find yourselves in a situation with expiring H-4 EAD validity or have any questions pertaining to H-4 EAD work authorization.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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