Starting in 2025, processing times for H-4 EAD applications are expected to exceed six months, leaving H-4 EAD applicants with no way to avoid gaps in employment authorization

H-4 Employment Authorization Document (EAD) application approvals are set to be unbundled from their related H-4 application and H-1B petition approvals starting on January 20, 2025, and this will almost certainly lead to substantial delays in H-4 EAD adjudications. The change is due to the end of a January 2023 Department of Homeland Security (DHS) settlement agreement arising from litigation. This timing also coincides with the beginning of the new Trump administration, which has signaled its intention to curtail immigration drastically. U.S. Citizenship and Immigration Services (USCIS) currently estimates processing times of two to four months for this type of application, so even those applications already pending with USCIS today are likely to be further delayed.

Starting in 2025, processing times for H-4 EAD applications are expected to exceed six months, leaving H-4 EAD applicants with no way to avoid gaps in employment authorization. USCIS guidelines generally do not allow filing EAD renewals more than six months in advance of the expiration date. In addition, current rules on automatic extensions for timely filed H-4 EAD applications limit the automatic extension, normally 540 days, to the expiration date of the H-4 I-94 entry record. Even when the H-1B, H-4 and H-4 EAD extensions are submitted as early as possible, there is no way to extend H-4 work authorization beyond the H-4 I-94 expiration date. Expected delays in unbundled H-4 extensions will therefore automatically cause interruptions in H-4 work authorization starting in 2025.

What Steps Do Employers Need to Consider?

Premium Processing

To lessen the impact of this change, file all H-4 extensions and H-4 EAD renewals that can be bundled with H-1B petition extensions using premium processing. Do so as soon as possible but definitely before December 23, 2024 (taking into account year-end holidays and the 15 business days premium processing adjudications are allowed to take). Using the service will increase the chances that the “bundle” of H-1B, H-4 and H-4 EAD applications will be adjudicated in time.

Upgrade Pending Applications

For those with applications already pending at USCIS without premium processing, consider upgrading the H-1B petition to premium processing as soon as possible to try to get an adjudication of the H-1B and H-4 extension and EAD renewal before January 17, 2025. The 2023 DHS settlement agreement did not explicitly authorize upgrading, but based on experience, the USCIS premium processing unit has in fact approved such upgraded bundled applications in the past. (Unfortunately, premium processing is not available for stand-alone or unbundled H-4 extensions or H-4 EAD renewals.)

Background

H-4 Status

Spouses of H-1B professional workers receive H-4 status. Certain H-4 spouses are permitted to apply for an EAD if the H-1B worker has either 1) an approved I-140 petition (one of the initial steps in the green card employer-based sponsorship process) or 2) the H-1B worker is eligible for H-1B extensions because a PERM application (another initial step in the green card process) was filed more than one year prior to the end of the usual six-year maximum period of H-1B stay.

DHS H-4 EAD Litigation

On January 19, 2023, USCIS entered into a settlement agreement to resume bundling or processing the H-4 and H-4 EAD applications, together with the petitions for extension of H-1B professional workers, but only when these are all filed together. Edakunni, et al. v. Mayorkas (No. 21-cv-393-TL, USDC, Western District of Washington). Under the terms of the settlement agreement, the agreement is only valid for two years from when it was signed on January 19, 2023. This means it will now expire this coming January 2025. With President-elect Trump’s inauguration on January 20, 2025, there is little chance that DHS will revisit this settlement.

For More Information

If you have any questions about this Alert, please contact any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.