When USCIS announced that H-4 holders would qualify for an automatic extension of their EAD, this was praised as a move in the right direction. However, the caveat to this rule is that to qualify for an automatic extension an individual needs to have a valid I-94.
The automatic extension was initially 180 days, but due to the backlog and an increase in processing times, this was extended to 540 days.
In the last few weeks, I have spoken to several individuals who have valid H-4 until January 2023. They have a pending H-4 extension and a timely filed H-4 EAD extension. Many thought they would be entitled to the automatic extension. Unfortunately, the automatic extension will terminate the earlier of the following events:
- at the end of the individual’s H-4 status as per their I-94;
- the approval/denial of the I-765 application; or
- 540 days from the expiration date on their existing EAD card.
If USCIS were adjudicating the H-4’s along with the H-1Bs, particularly those filed in premium processing, this wouldn’t be a problem. However, this is not happening in the majority of cases, and most individuals are missing out on the extension.
One way to qualify for the extension is to leave the U.S. and return with a new I-94 prior to the expiration of your current I-94 and EAD card. By doing this when the employer comes to re-verify employment prior to the expiration of the EAD, the employee can present the expired EAD and receipt notice for a timely filed I-765 (indicating class (c)(26)) and a valid I-94 showing continuing H-4 status. Based on this the employee will be entitled to the extension.
For those without a visa and who have problems obtaining an appointment leaving the U.S. will not be an option. Although Automatic revalidation allows those with an expired visa to travel to Mexico or Canada for 30 days this is only an option for those who have a valid I-94. Therefore, an H-4 applicant with a pending extension would not be able to travel and will have to wait within the U.S. for the H-4 extension to be approved. This means missing out on the automatic extension.
While the automatic extension was a move in the right direction, only a small percentage of individuals will actually qualify.
Where the H-4 extension is approved after the expiry of their current I-94, the automatic extension will not apply and individuals will have to wait to receive the physical EAD card before going back to work.
If you have questions regarding the above, please e-mail PLG Partner at cprescott@patellegal.com.