H4 EAD Auto Extension Criteria – Can I work on receipt for 540-Days?

H4 dependents must file the H4 EAD i765 application before working in the US.

L2 dependents can work without filing an EAD. Earlier, they were required to file the i765 form explicitly but it is not required now.

If an EAD is required for your case, you can work until you get the renewed EAD card or are eligible for auto-extension.

USCIS rule allows a 540-day EAD auto extension for all EAD applications if you file it before the current EAD expires:

• i485 or Green Card EAD (code C09) are also allowed to use the automatic 540 EAD extension.
• L2 EAD holders whose category code is A(1)(8) can now work using their L2 i94. There is no need to file form i765.
• A (C05) J-2 spouse or minor child of a J-1 exchange visitor cannot work based on receipt for their EAD extension.

Auto EAD Extension Options

How to get an H4 EAD Auto Extension with a short i94? This is the most asked question on our H4 EAD forum.

There are some practical options available:

#1 File H1B, H4 and EAD in premium (Fastest)

As per the new USCIS rule, they will process all 3 applications in premium i.e. within 15 calendar days if you file all of them at the same time and in the same package.

This is the fastest way to get H4 EAD approved at this time.

There will be no need for an H4 EAD auto extension in this case.

#2 Filed in regular processing – H1B, H4 & H4 EAD are pending

If you filed all 3 applications together in regular processing, then you can upgrade it to premium.

The chances are good that all three will be approved within 15 days.

If only H1B is approved within 15 days, there are very high chances that H4 and EAD will be approved too within the next 1-30 days. That’s the trend we have observed.

#3 H1B Approved but H4 and H4 EAD are pending

You have two options to get the H4 EAD auto extension by extending H4 i94 quickly through these:

#3.1 Visit the US border to get a new H4 i94

You can visit the US-Mexico or US-Canada border and request a new H4 i94 based on the extended approved H1B i797.

If they issue a new extended H4 i94 based on the extended H1B i94, you will be eligible for an H4 EAD auto extension until the earliest of this date:

• the new H4 i94 expiry
• or the 540 days

#3.2 Get an H4 Visa Stamp from US Embassy

The option requires you to travel outside the US and get a new H4 visa stamp on the passport using the extended H1B i797 approval.

You can then enter the US using the new H4 visa stamp and they will issue a new H4 i94.

If you had filed H4 EAD before the previous H4 i94 expiry, you will be eligible for Auto EAD extension now till this date:

• the new H4 i94 expiry
• or the 540 days

Got H4 i94, What Next?

It is recommended that you send this new i94 copy to USCIS and request them to attach it to your pending H4 EAD extension file.

Your employer will need this proof to let you keep working using the H4 EAD extension rule:

1. Extended H4 i94 and
2. Pending H4 EAD receipt

Auto EAD Extension Categories

USCIS only allows some EAD categories to keep working even after EAD expiry if you have filed the extension before the current EAD approval expires.

H4 EAD category is C(26) and it is part of the automatic EAD extension allowed list: A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, and A12 or C19.

The green card EAD category is C09.

Interim EAD – Work for Some Days?

Many people ask if they can keep working based on the H4 EAD extension receipt even after the current one has expired for a couple of days.

The answer is that you cannot work after the expiration of your EAD card validity. You have to stop working the same day the EAD expires unless you are covered under the auto-extension policy.

i765 Notice of Action

The i765 notice of action (i797) sent by USCIS may have a general language that you are allowed to keep working for up to 180 or 540 days.

Note that this is a generic message about automatic renewals available if your EAD application is pending in the category allowed by USCIS.

Interim EAD is given to help the continued employment when USCIS is taking time to approve the EAD renewal application.

Can I work if H4 EAD Renewal is in the process?

You cannot work if your existing H4 EAD card has expired and your H4 i94 has expired while renewal is in process.

Unpaid Leaves or Termination

Some employers and attorneys suggest going on ‘unpaid leave’ and returning to work once you have got your new EAD card.

In our opinion, the job should be terminated by the employer and you can rejoin once you get an H4 EAD work permit.

• Many attorneys recommend that your employer terminate your employment and I-9 to avoid unnecessary compliance issues later.
• The employer has to fill out form I-9 to report legal employment to the government and IRS and hence cannot keep you on the payroll.

It is also for your benefit to stop working as the status issues might crop up at the time of green card processing, which may hurt more than a couple of days or a month’s salary now.

You can talk to your employer and attorney to check if they are okay with letting you go on a leave of absence while your EAD card renewal is pending.

FAQ