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Update 3 May 2022 – USCIS has issued a temporary final rule which helps increase the 180-day auto extension to 540 days (1.5 years in total).
Start date of the 540-day rule?
The auto-extension of 540-day starts immediately on May 4, 2022.
This article will discuss:
H4 EAD rules are a little complex and automatic extension is based on the status of your H4 i94.
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:
You will not get any automatic EAD extension if your H4 i94 has expired.
To mitigate this situation, we suggest these steps:
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.
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.
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 an automatic H4 EAD extension?
You can submit the following documents to your employer while your H4 EAD is pending:
The employer should allow you to work if you have a valid unexpired H4 i94.
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.
We expect the USCIS to provide the benefit to pending H4 EAD applications too. The details would be shared once they officially announce it.
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)
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.
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).
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 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.
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.
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.
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.
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.
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.
This post was last modified on May 3, 2022 9:44 am
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