Automatic L2 EAD, H4 EAD 180 Day Extension (Wasden Banias Lawsuit)

Automatic L2 EAD based on L1 status, H4 EAD automatic extension for 180 days or until H4 i94 is valid. Big changes as part of lawsuit settlement.

Written by AM22Tech Team
  AM22Tech Team    Updated 19 Nov, 21


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RN law and Wasden Banias team fighting the EAD delays have yielded great results for L2 and H4 communities. We thank them wholeheartedly for these sensible USCIS policy changes via the court case settlement.

This good news will cheer up Indians as they are the ones who use the L2 and H4 EADs the most.

Highlights:

  • L2 EAD has got the biggest change and benefit as they do not even need to apply EAD (i765) now.
  • H4 EAD gets auto extension upto H4 i94 expiry or 180 days, whichever date falls earlier. EAD still needs to be filed.

Start Date Of New USCIS Policy for Auto Extensions

USCIS has announced this policy change on Nov 12, 2021, on its website. Hence, we assume that it is applicable starting Nov 12, 2021, as there is no special start mentioned explicitly.

H4 EAD

H4 EAD rules are a little complex and automatic extension is based on the status of your H4 i94.

H4 i94 is Valid

The H4 EAD will get automatic extensions if you file the i765 renewal/extension application before the current EAD card expires and their H4 i94 is still valid.

The automatic extension will be for the earliest date of:

  1. 180 days after EAD card expiry OR
    • means automatic 180 day extension if you have valid H4 i94 extension and i765 is pending
  2. End of H4 status OR –
    • H4 i94 has expired but H4 extension is pending
    • H1B has lost its status
    • You have changed status from H4 to some other visa like F1, B1
    • H4 extension is denied for whatever reason
  3. H4 EAD application result
    • like a denial
    • H1B i140 revoked

Steven Brown of RN Law, who fought this case along with Wasden Banias has rightly marked it as an H4 EAD Delay Puzzle.

Expired H4 i94, Extension Pending

This lawsuit has not given any relief to these cases where your H4 extension is pending. This means that you will not get any automatic EAD extension if your H4 i94 has expired.

To mitigate this situation, we suggest these steps:

  1. File H1B extension in premium well before both H1B and H4 i94 expiry (Usually 6 months). You can skip filing H4 extension at this time.
  2. Get H1B approval and a new H1B i94.
  3. Visit any US border like US-Mexico San Diego, Laredo Texas or US-Canada by land. Ask for a new H4 i94 by showing the newly approved H1B extension i797 and i94. They do issue new H4 i94 based on H1B.
  4. File H4 EAD now with new H4 i94.
  5. You will get automatic H4 EAD extension. The time of extension will be based on rules mentioned above.

These steps do work with 100% success if your H4 visa stamp in the passport is still valid.

If the H4 visa stamp in the passport has expired, then the CBP officer at the land border may not issue a new H4 i94. It works 50% of the time as per our experience but there is no harm in trying.

Another way is to travel outside the US and then get a new H4 visa stamp and re-enter the US to get a new H4 i94.

In either case, we suggest filing H4 EAD only after getting a new H4 i94.

H4 Extension, EAD Pending – Travelled to get new i94?

If you have already filed H4 and H4 EAD and then have got a new H4 i94 by either traveling to any border or any other country, we strongly suggest sending this new i94 to the USCIS service center.

  1. Write an i94 interfile cover letter.
  2. Add your i765 EAD receipt details.
  3. Send it to the USCIS service center where your H4 EAD application is currently pending.

There is no guarantee (50-50 chance) that USCIS will accept this interfiled new i94 but that’s the only option you have.

USCIS may also send an RFE to submit this new i94. You can send this new i94 along with the cover letter attached to the RFE response letter.

Some attorneys also suggest filing an entirely new H4 EAD application to avoid the risk of denial since USCIS may actually deny your underlying H4 extension and then EAD. It is your choice to file a new one or just interfile the i94 based on your comfort level.

How to keep employment with automatic H4 EAD extension?

You can submit the following documents to your employer while your H4 EAD is pending:

  1. Current H4 EAD card copy (even if it has expired).
  2. Currently valid H4 i94. This i94 should have not expired.
  3. Current H4 EAD extension/renewal receipt notice copy.

The employer should allow you to work if you have a valid unexpired H4 i94.

L2 EAD

L2 visa holders will be able to work without filing any EAD application whatsoever. This is a BIG change.

The i94 stamp will convey the automatic work authorization for L2 spouses which means that no more i765 filing. You would be able to start working as soon as you enter the US with L2 status.

You would be able to use this new L2 i94 for I-9 legal employment verification with your employer.



Note that you cannot use an automatic work permit if you change your status from l2 to something else. The status should be L2 all the time on the most recent i94 to make use of this facility.

What about currently pending l2 EAD extensions?

USCIS will honor automatic L2 EAD extensions while the new process of issuing new i94s is started.

Pending EAD Applications

We expect the USCIS to provide the benefit to pending H4 EAD applications too. The details would be shared once they officially announce it.

RN law has shared the details of the settlement here.

Analysis (H4 EAD)

It seems that life for high skilled H1B and their families is not easy. A new set of complex rules have been added now.

Sensible Changes (Which are not done but policy existed prior to 2019)

  • Approve H4 and H4 EAD along with H1B premium
  • Approve H4 EAD within 90 days
  • Allow filing H4 EAD extension before 180 days of its expiry

USCIS could have resolved all these issues by just reverting to the old policy of processing EAD within 90 days. This would have given a reliable time frame on which all non-immigrants can rely and avoid all other downstream issues.

But, No, USCIS has complex solutions for each simple problem. A new patchwork has been added.



We think that these new rules for the H4 EAD auto extension will help only a small set of people as most of the H4 extension & EADs are filed at the same time.

  • H4 extensions usually take more than 8 months and 12+ months if biometric is also needed.
  • You will be forced to spend money on travel to get H4 visa stamps to get new i94s to get this 180-day auto extension. Otherwise, you are still at the mercy of USCIS.
  • Once USCIS restarts the H4 biometric, you will be back at square one. You will still need to file lawsuits to expedite H4 extension approvals!

There is another lawsuit that has been filed recently by Greg Siskind’s team and AILA which challenges USCIS to process EADs within a 90-day timeline. If this lawsuit is won, we may see the same old days and avoid all these H4 auto extensions (with caveats).

No need to File Lawsuits for EAD delays

These two changes will bring a sea change in the current USCIS policy which forces almost all EAD workers to lose their job or spend thousands of dollars in filing individual lawsuits to force the government to do their job on time.

Currently, i485 EAD is eligible for an automatic 180-day EAD extension which is logical since USCIS’s own processing time is almost always more than 6 months at every service center.

USCIS had a sensible policy of processing EAD applications within 90 days of filing before the Trump admin changed the policy in 2019 which led to widespread job losses even in COVID.

The L2 and H4 EADs are primarily used by Indians as they are the ones who are stuck in decades-long green card backlogs due to country-based limits.

As per another lawsuit earlier, USCIS had agreed to waive the H4 (i539) biometric for at least 2 years starting May 2021 simply to remove the hurdles of approving EAD.

This was expected to speed up things and we are seeing some fast approvals in Nov after a 6-month wait. We hope that they keep making changes to help immigrants and make the process easier. We are seeing H4 EAD approvals within 2-5 months at this time and have heard of many such cases.

i485 EAD

As far as we know, there is no news about i485 EAD and AP processing times as they are also taking more than a year at this time.



i485 EAD with i131 advance parole
i485 EAD with i131 advance parole

We are tracking the BBB (Build Back Better Act) which has fair chances of passing at this time and may just provide help with GC EAD there.

The problem is only with the first-time GC EAD as the renewals come with automatic 180-day extensions anyway.

FAQ

Is there Automatic H4 EAD Extension Just like L2 EAD?

There is an automatic H4 EAD extension but only up to H4 i94 validity.

L2 EAD has got more benefits as part of the court settlement as they do not even need to file EAD (i765) form now.

Can H4 start working without EAD now?

No, H4 cannot start working without first getting the EAD card in hand. They still need to apply for H4 EAD and that too only if H1B i140 is approved for eligibility.

Can First Time H4 EAD also Get Automatic Extension?

There is no automatic H4 EAD extension for first-time EAD applications.

The auto extension is only available for EAD renewal cases. If you have filed the H4 EAD for the first time, you need to wait until you get the card in your hand to start working.

Why are News Articles Claiming Big Change for H1B & H4 when H4 i94 Expiry Itself is a Big Issue?

The news articles may not understand the nitty-gritty of H4 and H4 EAD and hence are claiming big changes for H1B and H4.

As per our estimate, only about a small percentage of H4 EADs will get the benefit of auto extension as most file H4 extension and EAD renewal at the same time. This means that most H4 i94 would be having the same expiry date as the EAD expiry.

Hence, in this case, there will be no auto H4 EAD extension.




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Written by AM22Tech Team
  AM22Tech Team     



Recent discussion on forum

  1. Ritesh_Nayyar
    Ritesh_Nayyar

    If this goes through, will this also apply to someone who submitted documents in October for H4 EAD extension.


  2. sid631
    sid631

    This looks like progress.
    So if I understand correctly, the automatic 180 day extension will only be valid if one has/had an H4 EAD already and they are waiting on their extension.
    This will not change/help anyone who is filing for a fresh/new H4 EAD card ?


  3. Sneh_Mani_Tripathi
    Sneh_Mani_Tripathi

    Hi,

    What will happen to the fee paid to USCIS for i-765 application in process?


  4. Kalpesh_Dalwadi
    Kalpesh_Dalwadi

    All current applications will keep processing normally. Rule will apply from the date it is published and will impact all valid H4 EAD holders after the publish date.



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