On May 26th, USCIS will start accepting employment authorization document applications for H-4 spouses who are married to H-1Bs with approved I-140 petitions. The measure is long-awaited and while it leaves out a lot of people, it is welcome news. USCIS has just released a guidance memo on H-4 EADs and today it posted the new I-765 which is needed for those applications.

In the initial call introducing the H-4 employment authorization document, I asked about one scenario I see as being a major problem. If one is applying to change to H-4 status from another category (e.g. H-1B to H-4), USCIS will require the change of status application to first be approved before the 90 day EAD processing deadline clock will start. But that will mean for many that their ability to work legally will end and they’re out of work for up to 90 days while waiting on the new work card. Two simple solutions to this would either be to continue recognize as work authorized anyone waiting on the EAD approval who was work authorized in another category when the application was filed (such as the example I mentioned) or simultaneously adjudicate the change of status and the work card when requested (even when this may mean a lengthier overall adjudication). USCIS has completely ignored me and apparently doesn’t care about this.

Unfortunately, USCIS also just seriously messed up a whole lot of  other H-1B and other H-4s by announcing they are temporarily suspending premium processing of H-1B extension applications due to the expected surge in H-4 EAD applications. The policy is in effect until July 27th. USCIS presumably wasn’t worried because H-1B extensions come with 240 days of automatic work authorization while an application is pending. But there are at least two situations where not having premium processing will cause major headaches.

First, if an individual needs to travel out of the country after the initial H-1B visa expires, a new visa stamp is going to be needed and that will only be issued after the extension application is approved. Non-premium processed H-1B applications can take several months to approve.

Second, many states tie drivers license expirations to H-1B approvals and the mere fact that one is authorized to work is not enough require an approved H-1B extension before they’ll issue a drivers license. In many parts of the USCIS, not being able to drive is highly expensive and a major inconvenience for those left unable to take to the roads.

USCIS already delayed the implementation of the H-4 rule in order to avoid the H-1B cap filing season in early April. H-4 extensions are often filed without premium processing because of the interim 240 day work authorization so the workload demand shouldn’t have been that great. This is lousy customer service and given the exorbitant fees already charged for premium processing (an extra $1225), the agency should be able to afford to staff up as needed.

Oh, and USCIS decided to gouge H-1B employers on another front as well. They’ve made an AAO case precedent (basically, a form of rulemaking without having to follow rulemaking rules) which requires employer to file H-1B amendments when H-1B employees are moved locations even when there are no material changes in their employment. There are few issues for USCIS to think about in these cases, but the H-1B amendment fees will be enormous.


Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind

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17 Responses to USCIS Giveth and USCIS Taketh Away in the H-1B Category (But Mostly Taketh)

  1. Naveen says:

    Its all confusing, whether to apply for H4-EAD or Not, because early next year I-140-EAD is expected.

    On travel H4-EAD requires visa stamping, while I-140-EAD will come with AP for travel.

    Why apply for H4-EAD for 6-months, especially when H4 were Homemaker for 6-10 years.

  2. Naveen says:

    Is it lawful to maintain two different EAD’s together ( H4-EAD and I-140/AOS EAD).

    After getting I-140/AOS EAD, would prefer to continue status on Non-Immigrant status on H1/H4, so can file AOS within USA without consular processing. But If some circumstances arrives, than will give-up H1/H4 status and switch to I-140/AOS EAD.

    What if I apply for H4-EAD and later I-140EAD/AOS-EAD

  3. RS says:

    Regarding H1 to H4-EAD work gap during concurrent filing, the new I-539 form has ‘Effective Date of Change of Status’ (Part 2: Q:2.a). If the current H1-B is valid for a while, can we mention a future date of like 4 months from date of application to avoid the employment gap between change of status to H4 and receiving actual EAD? Please share your thoughs

    • Greg Siskind says:

      Interesting. I think the problem is that USCIS doesn’t have premium processing for I-539s so you can’t predict when it’s going to be approved. And then you have to tack on 90 days from that point for the EAD to be approved. Given I-539 processing times, this seems like it would be pretty hard to achieve what you’re trying to accomplish.

      • RS says:

        Thanks for your reply. Let’s hope that USCIS releases clarification on cases like these after reviewing initial pool of applications.

        • Pratap says:

          Hi Greg, I would like to follow up on this thread.

          Can the below mentioned approach work to avoid/minimize employment GAP with concurrent H4 COS and H4 EAD application:

          “File for H4 COS 6 months prior to the requested start date (assuming we can request for start date, please suggest?) and hope that the USCIS approves the COS in 3 months and begins to work on the EAD which will take about 90 days.”

          • Greg Siskind says:

            Possibly. We did get our first H-4 EAD approved last week and it only took about two weeks after the H-4 itself was approved so that was positive news.

  4. Priya says:

    Hello Greg,
    I am working for an employer with an approved I-140 and an extended H1B visa (obtained on basis of the approved I-140). I am planning on moving to a new employer who will be filing a change of employer H1B without requesting an extension of status. Would such a filing still be eligible for premium processing?

    • Greg Siskind says:

      My reading is that this would still be premium processing eligible.

      • Priya says:

        Thank you for your quick reply. I am assuming the new employer will not apply for extension of status since they would like me to join quickly and I do have a valid I-797 till December 2017. However, I am beyond my 6th year on my H1B right now so I want to make sure that USCIS is not going to interpret my change of employer petition as an extension of status.

  5. Ramya says:

    Hi Greg . Thanks for this item. I’m currently in F1 OPT and I would like to change to H4 EAD .As per your post ,I’m perceiving I would have to stop working with current employer at least for 90 days in this process before I get H4EAD . Is there anything we can do to this?” USCIS has completely ignored me and apparently doesn’t care about this.” . So, I assume you have already tried to make aware USCIS about this issue . Do you still have hopes on this fix? Or people like us can do anything on this?

  6. NP says:

    Hi Greg,
    My F-1 CPT expires December 2015 (not eligible for OPT) and my spouse will be applying for an H-1B extension for 3 years (H-1B issued in October 2012). Is it possible to avoid the gap while changing statuses by filing a COS to H-4 with a future effective date of December 2015 and the EAD request concurrently along with my spouse’s H-1B extension. We could use premium processing (for the H-1B extension) wherein I would also get the benefit of the COS to H-4 in 2 weeks, and thus have sufficient time till December 2015 to get the concurrent EAD filing approved. Do you think this is one way to avoid the gap? Is there any chance that USCIS will approve the COS effective immediately and not provide the effective future date for COS to H4?


    • Greg Siskind says:

      As of now, USCIS is not willing to assure concurrent adjudication of work authorization and an H-4. USCIS is aware of the issue but as of now has not indicated they are willing to change their policy.

  7. SNEHAL says:

    USCIS is idiot….
    if they do some statitics…will find that the manpower they need to process – H4- EAD applications and H1-ext will much be lowered in number if they process I-485 AOS-EAD for all GC applicants faster.

    Most of candidate for H4-EAD are actually waiting on priority date for filing AOS & EAD. They just need to move manpower to process I-485 not H4-EAD. which will help to reduce H4-EAD applicants anyway and speed up priority date.
    I don’t understand dobling work for staff on AOS and H4-EAD while their status is attached in most of case.

    Now I’m due on third H1-B extension….goes for all who delayed on priority date..
    somebody need to teach them…what to do..
    I will be filing H1B- ext..in next 3 month for me..new H1-B for spouse on APR and H4-EAD if H1B don’t workout…
    3 apps = 3 people getting job, just because priority date retrogated…
    is it what they wanted??????

  8. Sirisha says:

    Hi Greg,
    My H1b is valid till Nov 2017. However, I would like to apply for COS to H4EAD. Can I select H4 effective date as future date ( let’s say If I apply for COS today, Can I mention effective date as Sep 2016). I am mentioning Sep 2016 considering the worst case scenario. USCIS processes few applications fast but most of the applications takes a minimum of 4-5 months. And processing EAD application may take 3 months, which would come to 8 months ( approx.). This way, I can avoid employment gap. Please suggest.

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