Immigration regulations has eased the restriction to some extent, allowing certain qualifying H4 spouses to secure employment authorization to work in the US.
Here we present an overview of the new H4 EAD rule, explain who qualifies for the USCIS H4 EAD, and answer some of the common questions related to the EAD for H4 nonimmigrants.
1. H4 EAD – Who Qualifies?
While the USCIS now allows certain invidivuals in H4 status to obtain work authorization through the Employment Authorization Document or “EAD Card”, it should be noted that not all dependent spouses on a H4 status qualify to apply for H4 EAD.
To be eligible to apply for H4 EAD, the foreign national must be the dependent spouse of an H1B nonimmigrants who:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has received one-year extension of H1B status beyond the sixth year under the American Competitiveness in the 21st Century Act of 2000, based on a filed I-140 or labor certification.
2. How To Apply For H4 EAD?
To secure the USCIS H4 EAD card, the qualifying H4 nonimmigrant must file the Form I-765, Application for Employment Authorization, with the USCIS, along with supporting documentation and fees.
When filing the H4 EAD application, the H4 visa holder must provide the following supporting documents:
1.Proof of H4 Status (i.e. copy of I-94, H-4 visa, I-797)
2.Proof of spouse’s H1B status (i.e. copy of I-94, I-797, H-1B visa)
3.Proof of relationship (i.e., marriage certificate)
4.Proof of eligibility
a.Copy of spouse’s I-140 approval notice or
b.Evidence that spouse’s H-1B was extended for one year under AC21 106(a) and (b)
DID YOU KNOW?
The EAD for H4 nonimmigrants is unrestricted, meaning the H4 visa holder can work in any occupation or in any industry. A qualifying H4 dependent spouse is also permitted to freelance or be self-employed and can start and run his or her own business and employ others.
3. H4 EAD – Concurrent Filing
The Form I-765, Application for Employment Authorization can also be filed simultaneously with the H1B and H4 extension petitions.
If the H4 extension/change of status application (Form I-539) and H4 EAD application are filed together or “concurrently”, USCIS will adjudicate the H4 EAD application only after the H4 extension of stay or change of status is approved.
DID YOU KNOW?
Technically, the 90-day adjudication clock for EAD processing only begins once the H4 application is approved. In practice, however, qualifying H4 holders are seeing the H4 EAD be approved along with the H4 extension/change of status application, and are getting the approval notices for the I-539 and I-765 at the same time.
4. Travel When H4 EAD Application Is Pending
The Form I-765 must be filed while the H4 holder is physically present in the US as the applicant must actually be in H4 status to be eligible to file for the EAD. Once the I-765 is filed, the H4 holder can travel abroad while the H4 EAD application is pending.
If the Form I-765 was filed concurrently with an H4 Change of Status application, then travel out of the country before H4 approval will result in the Change of Status application being abandoned. USCIS will deny the H4 Change of Status and the I-765.
5. H4 EAD: How Long Will They Be Valid?
The USCIS H4 EAD card will be valid for as long as the H4 Status is valid, even if the grant of the EAD is based on a one year extension of H1B status.
Example: Employer files a two-year extension of H1B. The Beneficiary has one year remaining of H1B time and qualifies for a one year extension based on a pending Labor Certification. An H4 extension of stay is also filed concurrently with the I-765. When approved, the H4 will be extended for two years and the EAD will have a validity that matches the H4.
DID YOU KNOW?
If the H4 EAD application is adjudicated well after the H4 application, either because there was an issue with the I-765 or it was filed after the H4 application, the EAD validity date will not be backdated. It will have a starting validity of the date it was approved and the end date should match the H4 end date.
6. Effect on H4 EAD If H1B Spouse’s I-140 Is Revoked
If the principal H1B’s I-140 is revoked before the H4 EAD application is filed or while it is pending, the EAD should be denied as the H4 holder is no longer eligible for the EAD (unless the H1B holder is still eligible for a 1 year extension).
If the I-140 is revoked after the H4 EAD has been approved, then the EAD for H4 spouse will remain valid and will not be automatically revoked. USCIS does have the ability to revoke an EAD if the I-140 has been revoked. As of the date of this writing, in practice, USCIS has not revoked any EAD’s simply because an I-140 was revoked.
DID YOU KNOW
An H4 EAD application can be filed even if the H1B spouse is no longer working for the employer that sponsored the I-140, as long as the I-140 remains unrevoked.
My Case Scenario
Clara is in F-1/OPT status and has six months of OPT remaining. Her spouse is in H1B status and his I-140 was just approved. His Priority Date is backlogged and they cannot file for Adjustment of Status right now. Her spouse just extended his H1B and it will be valid for another 3 years. Clara would like to file for the H4 EAD and not have any gap in her ability to work. What should she be concerned about?
The USCIS H4 EAD Card is a great option for eligible F-1/OPT holders. By going straight to H4 EAD, the applicant is skipping the worry about making it in the H1B Cap or finding another type of work visa. However, can Clara go straight from F-1/OPT to H4 EAD without a gap in employment authorization? It may be possible under only the right circumstances. Here’s what Clara needs to be concerned about:
a.I-539 Processing Times can be unpredictable. There is no way to guarantee that the H4 change of status will be approved by the time her F-1/OPT ends. If the I-539 is pending for more than 6 months, she must stop working when the OPT ends and she will not be able to resume employment until the H4 change of status and H4 EAD are approved.
b.There’s no certainty that the H4 EAD will be approved concurrently with the I-539. Even if the H4 change of status is approved in time, the EAD may not be. Once the I-539 is approved, Clara will be in H4 status and must stop working until the EAD is approved.
Could Clara have done anything differently to ensure there was no gap in status?
a.If Clara filed her H4 change of status and I-765 concurrently with her spouse’s H1B extension of stay, she may be better able to control the outcome. If the H1B is pending for more than 4-5 months and the OPT is expiring, they can elect to upgrade to Premium Processing. The H1B and H4 should be adjudicated within 15 calendar days. Based on current USCIS practice, the EAD should also be concurrently approved.
b.If Clara is eligible for STEM OPT Extension, she should consider pursuing it as well. If the change of status is not approved in time, she can file for the OPT extension. The OPT Extension application will give her 180 days of work authorization past the OPT expiration.
My Case Scenario
Mark is in H1B status, as is his spouse, Hema. Hema’s employer has filed an I-140 petition on her behalf and it’s been approved. Her priority date is backlogged. Mark is approaching the 6th year of his H1B and his employer will not be starting the green card process for him.
He has decided to change to H4 status and obtain the EAD for H4. Will he be able to avoid a gap in work authorization?
I-539 Processing Times can be unpredictable. There is no way to guarantee that the H4 change of status will be approved by the time Mark’s H1B ends. Mark must be sure to file the H4 change of status and H4 EAD application well in advance of his H1B expiration so as to ensure a seamless transition.
After Mark files the H4 change of status, he has to take an urgent business trip abroad. He is considering just obtaining an H4 visa stamp and entering in H4 status and then filing for the EAD as he knows that the H4 change of status has been abandoned. Is this a good idea?
If Mark intends to continue working, he will not be able to if he enters in H4 status. If Mark has sufficient time left on his H1B, it would be better for him to enter in H1B status and refile the H4 change of status and H4 EAD application.
In addition to enabling qualifying H4 dependents to work in the US, the H4 EAD provision could also prove to be a creative and effective alternative in numerous scenarios, some of which we just saw above.
If you want to determine how the H4 EAD can help in your situation, or need assistance in filing an H4 EAD application, or seeking employment authorization in the US, contact our best US immigration lawyers immediately for a FREE Immigration Attorney Consultation.
We’ll talk through your priorities and recommend strategies based on our attorneys’ near 100% success rate.
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