Lawsuit Settlement Means H-4 EAD Spouses now Eligible for Automatic Extension While New Card Pending

Under a major settlement in a pending lawsuit, H-4 spouses who have timely filed an application to extend an existing employment authorization will be considered eligible to continue working, even after the expiration of their current employment authorization, for up to 180 days or until a decision is made on the extension application (whichever comes first).

In certain circumstances – Where an H-1B nonimmigrant has reached a stage of an employment-based green card petition where the I-140 is approved but priority date retrogression prevents filing a final-stage I-485 Application to Adjust Status filing for the family and eligibility for employment authorization under that pending case, a spouse of the H-1B who is maintaining H-4 status is eligible to obtain employment authorization to work while waiting for the priority date to become current. Often this so-called “H-4 EAD” will need to be renewed multiple times before the priority date of the H-1B spouse’s permanent residence case3 becomes current and the family can file Applications to Adjust, giving the H-4 spouse a separate avenue to obtain work authorization.

While certain employment authorization applications, and many of the major employment-authorizing nonimmigrant visas, receive the benefit of rules stating that the person can continue working past the expiration of a current employment authorization even without an approved extension as long that extension was timely filed (filed before the end of the last authorization), H-4 spouses did not receive this benefit before this settlement agreement as long as they continue to maintain H-4 status – meaning that their H-4 has not expired, they remain married to an H-1B principal, and that the H-1B principal is maintaining valid status.