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USCIS Policy on H-4 Spouse Work Authorization

14 Feb

An H-4 spouse may apply for an employment authorization document (EAD) if their H-1B spouse has an approved I-140 Immigrant Visa Petition or is eligible to extend H-1B status based on AC-21 extension eligibility.  Many of these H-4 spouses have experienced long USCIS processing delays of  7 months to 14 months or longer of their EAD renewal applications.  Foster reported in its November 2021 Immigration Bulletin that USCIS has attempted to alleviate some of the burdens arising due to the lengthy processing times of H-4 EAD renewal applications by automatically extending these EADs for 180 days under certain circumstances.

H-4 spouses who timely file for renewal of an expiring EAD qualify for a 180-day automatic extension of their expiring H-4 EAD if they:

  • Properly and timely file the H-4 EAD renewal application under the (c)(26) category before their existing H-4 EAD card expires, and
  • Possess an unexpired Form I-94 indicating H-4 nonimmigrant status that extends at least 180 days from the date the current EAD expires.

The automatic work extension begins on the date the EAD expires and continues until the earlier of the below events:

  • 180 days from the date the previous EAD expires,
  • USCIS makes a decision on the renewal application, or
  • I-94 in the H-4 classification expires.  A timely filed and pending H-4 extension of status cannot be used in place of a valid I-94 for purposes of the automatic 180 day work authorization extension.   Notably, if the H-4 I-94 expires in less than 180 days, the H-4 spouse’s work authorization will be limited to the I-94 expiration date.

USCIS has provided guidance to employers on how to complete the Form I-9 for those H-4 spouses who can benefit from this 180-day automatic extension for timely filed H-4 EAD renewal applications.

Unfortunately, H-4 spouses have not benefited from the recent changes to L-2 and E-2 spousal work authorization “incident to status”. The 180 day provision only applies to H-4 EAD renewals and does not alleviate the lengthy delays in obtaining work authorization for spouses seeking an initial H-4 EAD.  What is also unfortunate is that H-4 spouses are not eligible for the 180-day automatic EAD extension if their H-4 status would expire before the 180 day extension period. Many H-4 spouses may still experience difficulties associated with lengthy USCIS EAD adjudications, including gaps in employment authorization. In some cases, it may be possible to reduce these impacts through some other strategy. H-4 applicants who need to extend their status and/or renew their EAD card should contact their Foster immigration attorney for a consultation to discuss next steps, including possible international travel or other options, at least six months in advance of EAD expiration.