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I-140 has been revoked.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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