Progress on H-4 EAD Rule

Update

(17.Feb.2015) The draft I-765 has been approved. The new form cannot be used, however, until the H-4 EAD rules go into effect. As soon as we get any word regarding when the H-4 EAD rules will be implemented, we will post the information on MurthyDotCom and send eMail notification to those who subscribe to our free H-4 EAD notification service.

We have had many queries from readers who would like the Murthy Law Firm to file their EADs. Details on engaging our firm for this process will be posted on MurthyDotCom at the appropriate time.

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Thousands upon thousands of foreign nationals are anxiously awaiting issuance of the final rule that will make certain H-4 spouses eligible to apply for employment authorization documents (EADs). A draft version of the application for employment authorization (form I-765) has been released, further evidencing that the rule will be implemented in the very near future.

Current Version of H-4 EAD Rule Proposed in May 2014

On May 12, 2014, the U.S. Department of Homeland Security (DHS) published a proposed regulatory change to grant eligibility for EADs to certain H-4 spouses. Eligibility under the proposal would be contingent upon the H1B spouse having either an approved I-140 immigrant petition or an extension of H1B status beyond the six-year limit, as explained in the MurthyDotCom NewsBrief, Proposed Rule for H-4 Employment (13.May.2014).

Final Rule ‘Close at Hand’

On January 22, 2015, the Director of the U.S. Citizenship and Immigration Services (USCIS), Leon Rodriguez, indicated that that the final rule is close at hand. This was followed by more concrete evidence that the proposal was advancing when, on February 9th, the rule moved to the Office of Management and Budget (OMB). This is one of the final steps of the formal rulemaking process, and it is expected to take 30 to 60 days to complete.

Draft Revised Form I-765 Released

As part of the regulatory change, it is also necessary to change the I-765 form and corresponding instructions. To that end, the draft versions of these documents are now available on the OMB WebSite. Based on the draft instructions, it appears that the categories of H-4 spouses who will qualify to apply for EADs in the final rule will mirror those set forth in the proposed regulation from May 2014.

Expected Timeframe to Process H-4 EADs

A standard I-765 application for an EAD typically takes about 90 days to adjudicate. This standard timeframe should apply to most H-4 EAD applications, as well, although, the enormous influx of EAD applications expected as soon as the rules go into effect could, conceivably, cause some delays.

Still, the revised instructions to the I-765 do provide some helpful procedural information, including insight into certain types of cases that will likely experience longer wait times to obtain EADs. The instructions confirm that it will be permissible for the eligible spouse to request the EAD by filing the I-765 at the same time as applying for an H-4 extension or change of status. In those situations, however, especially if a change to H-4 status is involved, the USCIS must first determine whether the individual is eligible for the status requested. Such applications can easily take several months or longer to adjudicate, and the EAD could generally not be issued until the status request is approved.

Conclusion

Each new piece of information makes it clear that the H-4 EAD will be a reality in the near future. MurthyDotCom is closely tracking this issue and will post updates once final details emerge. We will also send notification to those who subscribe to our free H-4 EAD notification service.

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