USCIS Teleconference Yields Additional Information About New H-4 EAD Regulation

On Thursday, February 26, 2015, USCIS held a teleconference in order to provide more information about the recently published regulation extending employment authorization to certain H-4 visa holders who have reached a certain point in their green card application process.

The purpose of the regulation is to to provide employment authorization for H-4 spouses if their spouse who is working on an H-1B visa has an approved I-140, or has extended their H-1B status beyond the 6-year limitation due to the fact that they have a green card case that has been pending for at least 365 days.

During the course of that call, the following information was provided:

1. The regulation will take effect on May 26, 2015. No applications will be accepted prior to that date. Any application sent to USCIS on that date will be rejected and must be re-filed after May 26th.

2. A new I-765, Application for Employment Authorization (“I-765″) has been prepared (though not yet published) which will need to be used to file the application.

3. Upon approval, the applicant will be issued an Employment Authorization Document (EAD), which is a card that looks much like a US driver’s license. It will have an expiration date on it.

4. The addresses to which applications under this regulation will be published closer in time to the May 26th filing date.

5. USCIS will be publishing a FAQ which will provide answers to a number of questions about the new regulation. That will be published closer to May 26, 2015. A number of callers asked questions which the panel on the Teleconference was unable to answer. Many of these will be addressed in the FAQ.

6. There is no limit on the number of cases which will be accepted for filing during the course of a year.

7. USCIS expects approximately 179,000 cases to be filed in the first year after the regulation become effective.

8. The processing time for the I-765 application is 90 days, as with all other I-765 applications.

9. USCIS does not currently expect applicants will have to go to an Application Support Center (ASC) for a biometrics appointment in order to process the cards. The applications will be processed using the photos submitted with the application.

10. The panel could not answer the question of whether the applicant has to be in the US in order to file the application or remain in the US to have it processed. This will be answered in the FAQ.

11. The validity period of the EAD card will match the validity period of the H-4 visa holder’s H-4 visa status.

12. The EAD does not replace the H-4 status. The applicant will be required to maintain H-4 status once the EAD is approved.

13. The panel could not answer the question of what will happen to the EAD if an H-4 is issued an EAD card and then the principal H-1B holder changes jobs and the prior employer’s I-140 is revoked. This will be addressed in the FAQ. One of the options for approving the I-765 is that the applicant’s spouse has a valid I-140. If the I-140 is revoked after the EAD card is issued, the question arises about what happens to the validity of the EAD card issued based on the now revoked I-140.

14. If an H-4 holder is eligible for an EAD card because their H-1B spouse has an approved I-140, the I-140 must remain valid in order for the H-4 for file an I-765. If the I-140 has been revoked, the H-4 is no longer eligible to receive an EAD.

15. The EAD does not include travel authorization as EAD cards issued in connection with Form I-485, Application to Adjust Status do. The applicant will need to obtain an H-4 stamp in their passport in order to continue to travel in and out of the US.

16. An eligible individual can file a form I-765 application concurrently with an H-1B extension and I-539 Application to Extend Status. The H-1B and I-539 will be adjudicated first, and if approved, the processing of the I-765 will then start. The I-765 will not be started until the I-539 is approved.

17. Premium Processing will not be available for form I-765, Application for Employment Authorization.

18. The I-765 Applicant will be required to prove eligibility, which may include submitting a copy of the approved I-140, prior H-1B approval notices, and maintenance of status.

19. The I-765 under this regulation can only be filed through the paper process; it cannot be filed online.

20. An H-4 holder cannot begin working until they have received the actual EAD card. Filing the application and receiving a receipt notice are not sufficient to begin working. The applicant must have the actual EAD card in hand in order to start working.

21. This is a permanent regulatory change. There are not plans to take this program away in the future. It is not specifically tied to the Executive Action currently being challenged in lawsuits against the President’s Executive Action because it is not an exercise of the President’s executive authority – the option was created by regulation and stands as law in the US at this time.

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