Continue working H4 EAD after i94 expiry

[magar36]

Hello,
I am on H1B and my spouse is currently working on H4 EAD. My petition and both of our i94s expire in Sep 2023. I have already applied for H1b and h4 and ead extension through normal processing. Will my spouse be able to continue working beyond i94 expiry once we have the i797c extension receipt?
We are a little confused since there is a mention that one cannot continue working on h4 ead beyond i94 expiry. Why is then 180/540 day rule taken into consideration, since most of the times, i94 expiry date matches or is very close to h1b petition expiry?

[newacct]

No, they will not be able to work with expired EAD and expired I-94. The 540-day automatic extension of work authorization for H4 EAD during EAD renewal only applies if they have a valid I-94. So if their H4 extension of stay is approved before their EAD renewal, they will then be authorized to work on their 540-day automatic extension of work authorization. Or, if they leave the US, and are re-admitted with a new I-94, they can then work on their 540-day automatic extension of work authorization.

[magar36]

Thank you for this information newacct This very much clarifies my doubt. I have a few queries though:

1. When you say H4 extension of stay is approved before EAD renewal, do you mean h1b petition is approved? As a result of this, i94 will be updated for both h1b and h4 holder right (for as long as I am filing h1b and h4 extension together)?

2. Is it possible that h1b extension gets approved but h4 extension is not approved before i94 expiry of h4? If that is the case, will auto extension for h4 ead apply based on approved h1b petition, or will ead holder not be able to continue working until their h4 is approved and hence i94 is updated?

3. I see no point in auto extension being helpful for ead holder unless h1b holder switches their job and gets an approved petition beyond existing petition's expiry, meaning new i94 date is beyond ead expiry. For as long as the h1b holder remains with the same company, i94 expiry is pretty much going to be same or closer to ead expiry. Is that correct understanding?

[newacct]

1. When you say H4 extension of stay is approved before EAD renewal, do you mean h1b petition is approved? As a result of this, i94 will be updated for both h1b and h4 holder right (for as long as I am filing h1b and h4 extension together)?

No. H1b petition extension and extension of stay is applied on I-129, and H4 extension of stay is applied on I-539. They are separate applications. H1b extension of stay needs to be approved before H4 extension of stay can be approved, but you will only get new H4 I-94 when H4 extension of stay is approved. I-129 for H1b petition extension and extension of stay can be applied with premium processing if the company chooses, but I-539 for H4 extension of stay cannot.

2. Is it possible that h1b extension gets approved but h4 extension is not approved before i94 expiry of h4?

Yes, it is very likely.

If that is the case, will auto extension for h4 ead apply based on approved h1b petition

No

or will ead holder not be able to continue working until their h4 is approved and hence i94 is updated?

That's correct

3. I see no point in auto extension being helpful for ead holder unless h1b holder switches their job and gets an approved petition beyond existing petition's expiry, meaning new i94 date is beyond ead expiry. For as long as the h1b holder remains with the same company, i94 expiry is pretty much going to be same or closer to ead expiry. Is that correct understanding?

Like I said, the automatic extension of work authorization is useful when: 1) the H4 extension of stay is approved before the EAD renewal is approved, or 2) you leave the US and re-enter after the H1b extension is approved, thus getting an H4 I-94 until the expiration of the H1b petition.

[magar36]

This is extremely helpful newacct Since I am applying for H1b, h4 and ead altogether (this should be filed by company's attorney firm in 2-3 weeks), and h4 I-94 is valid until Sep 17, 2023, do you suggest I apply in premium now itself? Since you mentioned that H4 extension cannot be done in premium, can H4 extension approval happen faster if H1B got approved quickly as a result of premium processing? Or should I just file everything via normal processing and keep fingers crossed to have h1b and h4 approval before I94 expiry (which would be around 5 months from the date of filing)? Another option given by the company is to file everything in normal processing now and update to premium around July-Aug (reason being that company doesn't accept payments for upgrading to premium and they themselves need to get some higher level approvals for premium processing of I129). I was also told that it may be possible that my h1b extension may happen sooner considering that I have an approved I140, but I really don't believe that.

I was referring to the link below wherein many people mentioned that they got h1b and h4 extension approvals within a couple of months since they applied for everything in premium.

[MahishTanzon]

it's important to note that this rule only applies if the H4 EAD renewal application is filed before the current EAD expires. If the H4 EAD has already expired, then the spouse cannot work until the renewal application is approved.

In your case, as long as the H4 EAD renewal application is filed before the current EAD and i94 expire, your spouse should be able to continue working once you receive the i797c extension receipt. However, it's important shagle to keep in mind that USCIS processing voojio times can vary, so it's best to apply as early as possible to avoid any gaps in omegle employment authorization.

[newacct]

In your case, as long as the H4 EAD renewal application is filed before the current EAD and i94 expire, your spouse should be able to continue working once you receive the i797c extension receipt.

No, they can't work until they have a valid I-94.

[magar36]

newacct - Does it really speed up h4 extension if h1b is filed in premium? Also, can h4 ead be filed in premium (I don't see a point for it until h4 can be be filed in premium)?

[magar36]

One more question newacct - suppose my spouse’s i94 doesn’t come before i94 expiry, which results in her quitting her job. Would she be able to work (through auto extension) after h4 extension is approved while ead extension is still in progress (even though she has had to stop working for some time between expiry and i94 approval)?

[newacct]

One more question newacct - suppose my spouse’s i94 doesn’t come before i94 expiry, which results in her quitting her job. Would she be able to work (through auto extension) after h4 extension is approved while ead extension is still in progress (even though she has had to stop working for some time between expiry and i94 approval)?

yes

[magar36]

Thank you newacct We really appreciate your help with all the queries here 🙇🏻