After AC21 H-1B approval, can the spouse on the R-1 file H-4 COS + H-4 EAD now, or must we wait until the post-6th-year starts?
I’m H-1B and my amendment + 1-year AC21 extension (beyond 6 years) has been approved. My 6-year max ends May 2026; the AC21 validity is May 2026–May 2027. My spouse is currently in R-1 with the same employer. We want to switch to H-4 + H-4 EAD (c)(26) with no work gap.
Questions:
1) Now that AC21 is granted, is my spouse eligible to file H-4 COS + I-765 (c)(26) now, or does (c)(26) eligibility only attach once the post-6th-year period actually begins in May?
2) If we file now and request a future-dated H-4 start in May 2026 on the I-539, will USCIS typically approve the I-539 earlier and then hold the I-765 until on/after the H-4 effective date?
3) Any best-practice tips (timing, cover-letter notes, evidence) to avoid downtime during the transition from R-1 to H-4 EAD?
4)Should we file I-539 and I-765 together, or wait and file the I-765 after the I-539 approval?
We understand (c)(26) eligibility can be based on an approved I-140 or on the AC21 1-year H-1B grant; our case is the latter. Looking for practical guidance and policy references on timing/eligibility.
There are no guarantees that there will be no gap in employment. There is always the possibility of H-4 getting approved sooner than the EAD.
Responses provided are general in nature and to be construed as informational (not legal advice), given that not all facts are known. Answering this question does not create attorney-client relationship.
After AC21 H-1B with I-140 approval, the spouse on the R-1 can file H-4 COS + H-4 EAD now, and need not wait until the post-6th-year starts.
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1. Yes — your spouse is eligible to file H-4 COS + I-765(c)(26) now, since the AC21 extension is already approved. You don’t have to wait until May 2026.
2. If you future-date the H-4 start, USCIS may approve the COS first and then hold the I-765 until on/after May 2026.
3. Best practice: file I-539 + I-765 together, with clear cover-letter notes citing AC21 approval and desired effective date. This minimizes downtime.
4. File both together — otherwise, you risk delay since the I-765 clock won’t even start until after the I-539 approval.
If my answer is the "BEST ANSWER" and/or "HELPFUL" please mark it accordingly. Fluent in 7 languages. Board Certified Specialist in U.S. Immigration Law, The State Bar of California...
