Employment Authorization for Certain H-4 Dependent Spouses FAQ (2)

1. Will USCIS require me to submit original documents with my application for employment authorization?
      As noted in the instructions for Form I-765, Application for Employment Authorization, you may submit a legible photocopy of an original document with your application, unless we later specifically request the original document in a request for evidence. If you submit original documents when not required, those documents may remain a part of the record and will not be automatically returned.
 
2. Will premium processing be available for Form I-765, Application for Employment Authorization?
      No. Premium processing is not available for Form I-765 applications filed by H-4 dependent spouses under 8 CFR 274a.12(c)(26).
 
3. What if my Form I-539 for H-4 status is still pending on May 26, 2015? Can I file Form I-765 immediately? Will USCIS match my Form I-765, Application for Employment Authorization to my pending Form I-539?
      If you have filed a Form I-539 and it is still pending on May 26, 2015, we encourage you to wait until your Form I-539 has been adjudicated before filing a Form I-765. This will prevent delays in the adjudication of your Form I-765. Additionally, because we anticipate a high volume of filings, we cannot guarantee that we will be able to match your Form I-765 with your Form I-539. 
 
4. Will USCIS cut off Forms I-765 after receiving the anticipated number of applications stated in the rule?
      No. There is no cap on Forms I-765 filed based on H-4 dependent spouse eligibility under 8 CFR 274a.12(c)(26).
 
5. Does USCIS expect any changes to the Form I-140 immigrant petition process based on this regulation change?
      No. We do not anticipate any changes in the way officers adjudicate Form I-140 immigrant petitions.
 
6. I am an F-1 nonimmigrant who possesses Optional Practical Training (OPT) employment authorization. Would there be continuous employment if I file a petition requesting H-4 nonimmigrant status concurrently with an EAD?
      As an F-1 nonimmigrant who has employment authorization under OPT, you are allowed to work only as long as the OPT authorization remains valid. Filing an application to change status from F-1 to H-4 nonimmigrant status and/or an application for employment authorization based on H-4 status does not extend your employment authorization under OPT or any previously granted employment authorization. If you file a Form I-539 requesting to change your nonimmigrant status to H-4 and you include a Form I-765, we will adjudicate your Form I-765 only after we adjudicate your Form I-539 and grant you H-4 status.
 
7. Will USCIS backdate the beginning validity date on the EAD to the start of my H-4 status if the Form I-539 is adjudicated before Form I-765?  
      No. We will not backdate the validity date of your EAD to the time your H-4 status was granted. Your EAD will be valid beginning on the date that USCIS adjudicates your Form I-765 or the date you acquire qualifying H-4 status, whichever is later. Additionally, your EAD will expire when your H-4 nonimmigrant status expires.
 
8. Can I travel while my Form I-765 is pending?
      You may travel if you are in valid H-4 status and meet all the admission requirements, including having a valid H-4 nonimmigrant visa. However, traveling outside of the United States could cause delays in your case. While you are outside of the United States, we may need additional information to make a decision on your Form I-765 or we may issue a Notice of Intent to Deny (NOID) with an opportunity to respond. If you do not respond on time to a Request for Evidence (RFE) or to the NOID, we may deny your case as abandoned.  Additionally, travel outside of the United States may also cause possible delays if we need to reschedule your appointment at an Application Support Center.
      Finally, please note that if you file Form I-765 concurrently with Form I-539 requesting a change to H-4 status from a different nonimmigrant classification, we will deny your Form I-539 as abandoned if you travel abroad while your Form I-539 is pending. In this case, we would also deny your Form I-765.  
 
9. How long will it take USCIS to adjudicate my Form I-765?
      The timeline will vary from case-to-case. Currently, the processing time for Form I-765 is 90 days (3 months). Please note that if you file a Form I-765 based on your H-4 nonimmigrant status under 8 CFR 274a.12(c)(26) concurrently with a Form I-129 and Form I-539, the processing timeline will not begin until we have made a decision on your spouse’s eligibility for H-1B status and/or your eligibility for H-4 status. Processing may also be delayed if the evidence included with these benefit requests does not establish eligibility and we need to issue an RFE or NOID.
 
10. Can I use my EAD to enter and exit the country?
      No. An EAD issued to an H-4 dependent spouse under 8 CFR 274a.12(c)(26) is not an entry document. If you have H-4 nonimmigrant status and depart the United States, you must use your valid passport and H-4 nonimmigrant visa (unless you are visa exempt) or other travel document to return to the United States. 
 

This article is for background purposes only and is not intended as legal advice or legal document. Please contact a professional immigration attorney for legal consultation and service.