Since 2019, as most of you know, after the new I539 form for H4 extension/ COS with Biometrics, there was a huge delay in the H4 processing times. Even if you were to file an H4 extension or Change of Status(COS), concurrently with H1B in premium processing, the delays were the same. 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. This biometrics process delayed the H4 EAD processing times as well.
In the past, there was no automatic extension for H4 EAD, when the H4 EAD application was pending with USCIS. It changed based on some lawsuits and further changed based on other delays by USCIS in the year 2022. In this article, we will review the background of H4 EAD automatic extension options, biometrics, and if it is 180 days or 540 days, including some common FAQs.
Before we get into details, let’s quickly look at the background of the H4 EAD category and how automatic extension came into existence.
What is the H4 EAD Eligibility Category?
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 the 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 in the below screenshot. This category is the most important thing that determines your ability to work with pending H4 EAD receipt or get automatic extension.
Background: H4 EAD Automatic Extension Rule from 2021
In the past, when H4 EAD was introduced, there was no concept of an automatic extension period for pending H4 EAD applications with USCIS. Below are the screenshots from the past that indicate the C26 Category, which is for H4 EAD, was not part of the original list.
DHS Lawsuit Settlement for H4 EAD Delays
There were a lot of delays with the H4 EAD processing after the introduction of Biometrics for H4 Extensions or Change of Status. As many were waiting for H4 and H4 EAD approvals after Biometrics, some were tired of the wait and took the issue to court. One such lawsuit resulted in USCIS publishing a temporary rule that suspends biometrics for H4 and L2 applicants for two years from May 17th, 2021 until May 17th, 2023. Despite that, there were still many delays.
Finally, a class action lawsuit was filed in September 2021 by H4 EAD holders for many of these delays and job losses. The result of this was a settlement between DHS and the plaintiffs that introduced the automatic extension of H4 EADs that are pending with USCIS for 180 days. You can read full info at H4 EAD 180 days Automatic Extension Lawsuit Settlement
Now that you have a background, let’s look at the actual H4 EAD automatic extension policy.
H4 EAD Automatic Extension: 180 Days Policy
DHS updated its H4 EAD Policy and introduced 180 days Automatic Extension for pending applications with USCIS. As per the USCIS policy alert, below is how the 180-day automatic extension works.
- H4 spouses should have filed H4 EAD renewals using Form I-765 on time before the H4 status expiry.
- The H4 EAD automatic extension will end as soon as one of the below three conditions is met.
- If the H4 status of the H4 EAD applicant ends, which is based on the I-94 end date
- H4 EAD decision is given by USCIS ( approval, denial )
- 180 days from the day the H4 EAD Card expires (the expiry date is on the H4 EAD Card)
Below is the screenshot of the actual 180 days extension policy
H4 EAD Automatic Extension increased to 540 Days
USCIS processing times were really hit hard during the COVID pandemic due to the staff shortages and other issues. H4 EAD was not an exception the same, the delays with H4 EAD processing continue to increase.
USCIS announced in March 2022 its goal to streamline the overall processing times and reduce the backlogs for all types of applications by end of FY 2023. As part of that initiative, USCIS announced a temporary rule that they are increasing EAD automatic extension duration for certain EAD applicants from 180 days to 540 days. H4 EAD was also included in that list of eligible categories for the 540-day automatic extension.
How does the 540 days automatic extension rule work for H4 EAD?
- As per the regulation, up to 540 days of the EAD automatic extension would be applicable for all eligible EAD holders, who currently get 180 days of automatic extension. As H4 EAD is already in this list of eligible categories, so H4 EAD holders would get 540 days of automatic extension as well.
- Up to 540 days of H4 EAD automatic extension would be given for such applicants, who file for H4 EAD renewals/extensions starting from May 4th, 2022 until October 26, 2023.
- The 540 days of automatic extension for H4 EAD would end as soon as a denial decision is made on the EAD application by USCIS or at the end of 540 days from the date of expiration on the EAD Card.
- After 18 months starting from May 4th, 2022, which is from October 26, 2023, the automatic extension duration for H4 EAD EAD would revert back to 180 days. It means that, if you file for H4 EAD renewal after Oct 26th, 2023 you will only get 180 days of automatic extension.
Below is the screenshot of the official regulation in federal register:
I-9 Compliance Documents for H4 EAD holders to use 540 days provision
As per law, an employer who hires anyone in the US is required to complete I-9 Form (Employment Eligibility Verification). The goal of this is to verify the employee’s identity and work authorization. It is to prevent illegal or undocumented workers. The I-9 form requires that employees verify a set of documents that are related to identity, visa status, and work authorization.
Below is the list of documents that employers need to use for I-9 compliance and avail of the 540 days automatic extension rule for H4 EAD holders :
- Expired H4 EAD Card that indicates relevant category code regarding eligibility.
- H4 EAD Receipt notice ( I-797C notice of action for form I-765) that has relevant class requested stated as from the above list of codes in the previous section.
- Form I-94 Arrival-Departure Record of H4 EAD holder.
You can work on the H4 EAD receipt notice, only if you filed for H4 EAD renewal and you are in proper H4 status. You cannot work on H4 EAD receipt notice as a first time H4 EAD Applicant.
Yes, the C26 category of H4 EAD is eligible for 180 days automatic extension and you can work when H4 EAD renewal is pending with USCIS. In the past, there was no automatic extension for H4 EAD. This changed in November 2021, when DHS announced the automatic extension for H4 EAD. See above official reference in article.
In general, you can work up to 180 days, while your H4 EAD is pending if you meet all the other general requirements. Also, from May 4th, 2022, H4 EAD holders get up to 540 days of automatic extension.
The H4 EAD automatic Extension in general is 180 days. But, starting from May 4th, 2022 it would be 540 days of automatic extension. The 540 days of automatic extension rule is valid until October 26th, 2023. You can read more at 540 days automatic Extension of EAD – USCIS rule
What was your experience in the past before the automatic extension? How do the 540 days of automatic extension feel for everyone? Share your thoughts in the comments below.