USCIS has finally released the long-awaited Questions and Answers for H-4 EAD applications. While some of the answers lacked clarity, there were no real surprises. Most of the procedures they describe follow long-established USCIS positions on status and benefit eligibility.
However, there was one big win – an expansion of coverage under AC21 §106(a) and (b). More on this below.
The new I-765 form will be posted soon. New instructions will also be posted, but until then, you can find the text of the future H-4 EAD [(c)(26)] instructions in this post from six weeks ago.
Since everyone has access to the Q&As, I will only discuss the most important answers. Most of the answers were expected, but we were all waiting for final confirmation:
Travel out of the U.S. while an EAD application is pending? As expected, allowed for stand-alone EAD filings, but not for EAD requests filed concurrently with a change or extension of status.
Filing for EAD when not in the United States? Not allowed. Since only a person in H-4 status is eligible to apply for this EAD, and a person not in the U.S. does not have any nonimmigrant status, a person outside of the U.S. cannot apply for an H-4 EAD.
Revoked I-140. If your spouse is the beneficiary of only one approved I-140, and if the I-140 is revoked, EAD eligibility ends. You cannot apply for an H-4 EAD under this eligibility category if the only I-140 has been revoked.
I-140 Revoked after H-4 EAD issued? USCIS has continually held that they have the discretion to revoke a person’s EAD if eligibility ends during the validity period of the EAD. We see this in several other EAD categories, and the operative word is “discretion”. USCIS did not say the EAD is automatically revoked. USCIS says they can revoke the EAD if they chose to do so. From long experience I can say that USCIS rarely revokes an EAD outside of the adjustment of status context. I will save a detailed discussion of this for a later post.
THE BIG NEWS: Expanded EAD Validity time under AC21§106(a). This is where USCIS could have been more clear with their answer. The correct question was asked, but the answer was obscure. But we will take it. According to the first Question, 106(a) H-4 EAD eligibility includes all time in H-4 status during an extension of stay that includes any time under 106(a). This is what we have been advocating since the proposed rule was published, and continued to push USCIS to clearly state after issuing the final rule. This will allow, in certain cases, for an H-4 EAD under the 106(a) prong to be valid for more than just one year. More detailed discussions of the 106(a) dilemma can be found in this post from five months ago!
However, I will give this warning: If you are one of those H-4s who may benefit from this expansion, grab it quickly. A USCIS Q&A does not have the force of law or regulation, and can be changed at any time. Once attorneys become fully aware of this provision, there are possible scenarios that may cause USCIS to change their position on this.
Watch for these Upcoming H-4 Post Topics:
--When You Do Not Need an Attorney for H-4 EADs
--H-4 EAD Fees
--Day and time for next Your Questions Answered Live on this blog.
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