As most of you know, with the New I539 form for H4 with Biometrics, there is a huge delay in the H4 processing times, even if you were to file H4 concurrently with H1B in premium processing. In the past, USCIS was adjudicating the H4 and H4 EADs in premium processing as a courtesy, but this has changed with the new Biometrics process for H4. As many are waiting for H4 and H4 EAD approvals after Biometrics, some are cutting close to the expiry of their current H4 EAD card and not sure, if they can continue to work with H4 EAD in processing and pending with USCIS. In this article, we will look at the official guidance from USCIS for H4 EAD category, if they can work or not and also, if the 180-day automatic extension applies to H4 EAD holders.
What category of eligibility does H4 EAD Fall under ?
When you apply for H4 EAD, either new or renewal, you fill out the I-765 form and for Question 27 in part 2, for eligibility category you would have entered (c)(26) like below. Also, if you notice your H4 EAD physical card that you get after the approval, you would also see the category as C26 as you can see below screenshot. This category is the most important thing that determines your ability to work with pending H4 EAD receipt or 180 days automatic extension.
USCIS Rule for 180 days automatic Extension for EAD – Does H4 EAD Fall under it ?
USCIS from Jan 2017, implemented automatic EAD extension for certain categories of EAD applications filed using I-765 form. This 180 days automatic extension of EAD is applicable, only if it meets both of the below two conditions.
- Properly filed the EAD renewal before the expiry of the current EAD Card
- The applicant EAD category is listed under a category that is eligible for 180 days extension as listed on USCIS website.
- Here is the EAD Category Codes list from USCIS website: A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, and A12 or C19.
- Also, the Category Code on your current valid EAD Card matches with the “Class Requested” EAD receipt notice. See below screenshot.
One key thing to note is that, Category C26, which is for EAD application filed by H4 Spouses, is not included in the eligible list for 180 days automatic extension. So, H4 EADs are not eligible for 180 Days automatic Extension.
Official USCIS Reference that says H4 EAD Category is not in automatic 180 days extension category ?
You can see below screenshots that we captured from USCIS website, that clearly outlines the rule of 180 days automatic extension and the listed categories. You can also check USCIS.gov Official 180 Day EAD Extension Rule
Also, USCIS has published a fact sheet that confirms that same. You can see the below screenshot on the same. You can check document at USCIS.gov Fact Sheet on EADs 180 Days automatic Extension
Also, USCIS has published guidance to employers in their employee handbook on what EAD categories are eligible and what they need to ask their employees and use for I-9 Compliance, for individuals with Pending EAD applications with USCIS. You can see the below screenshot on the same. You can check USCIS.gov Employers Handbook on EADs for I-9
Confusion with H4 EAD Application Receipt Notice Generic Message on 180 Days Extension
After you apply for H4 EAD, you would get a receipt notice from USCIS that will read something that is slightly confusing and misleading. This is where many are confused. Below is the important text and screenshot of H4 EAD receipt notice, where we have highlighted the relevant text.
“…Your EAD renewal is under a category that is eligible for an automatic 180-day extension ( see www.uscis.gov/I-765 for a list of categories);….
You do not receive your renewal EAD before your current EAD expires
Then this Notice of Action automatically extends the validity of your EAD for up to 180 days from the expiration date printed on the face of the card.…
You may present this Notice of Action with your expired EAD to your employer for employment eligibility verification ( Form I-9) purposes… ”
Below is the screenshot,
The text in the H4 EAD receipt notice reads that you get 180 days automatic extension, as you filed under a category that is eligible. But, the reality is C26 category does not qualify for automatic extension. You can check above links and screenshots we have already given. The text printed on the H4 EAD Receipt Notice is generic message that appears on I-797C Receipt Notice for everyone who uses I-765 form to file EAD and NOT customized for H4 EAD holders category. So, do NOT get mislead by the message that you are eligible. If you check closely, it asks to check USCIS website at www.uscis.gov/I-765 to get the list of categories. So, do not be confused.
What are the consequences of working on H4 without proper EAD Card that is valid ?
Working without proper authorization is considered violation of your US Visa status ( read US Visa vs. Status ). You should NEVER engage in any activity that violates your status in US. It is as same as working illegally without authorization and you may face issues in future. Some employers may not be aware of these subtle rules and may ask you to work without updating I-9, but it is your visa and your status. You will be the one, who will face consequences in the future. It is your responsibility to follow rules to be in proper status.
What was your experience with Employers on H4 EAD Expiration ? Share your thoughts.