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The Pros and Cons of the EAD and H-1B

EAD vs H-1B

For many, whether it’s temporary or permanent, working in the U.S. is a goal that is highly sought-after. There are numerous ways to contribute to the American workforce, and the EAD and the H-1B are two such ways. Knowing how these two tools of immigration relate can be vital to your efforts to work in the U.S. Here are the pros and cons of the EAD vs H-1B.

H-1B Overview

The H-1B is a nonimmigrant visa that allows specialized workers to be employed in the U.S. Due to its relatively low eligibility requirements, the H-1B is the most popular nonimmigrant visa available. This has given rise to a system that can make obtaining one rather difficult.

Here are the basic requirements you need to qualify:

  • You must have a valid job offer from a U.S. employer
  • The job must be for a specialty position that requires at least a bachelor’s degree
  • You must possess that bachelor’s degree

While these may seem simple there are some nuances to them to take note of. For example, the USCIS carefully scrutinizes whether or not a position is considered a specialty position. Working with an immigration attorney can help you better predict what the USCIS will think of your position.

Another thing to keep in mind is the employer-employee relationship. The employer needs to be able to control the duties, wages, and employment status of the employee. Because of this, you cannot self-petition for an H-1B visa and working for your own company can be a tricky case to get approved.

The H-1B Lottery

But there’s one major issue that you need to overcome when considering the H-1B vs EAD: the lottery. Each year, due to the massive volume of H-1B petitions the USCIS receives, there is an annual lottery held where petitions are selected at random to be processed. There are only 85,000 total slots in the cap, and with hundreds of thousands of submissions each year, the odds of selection can be relatively low.

Having a master’s degree can enter you into the master’s cap, for which the first 20,000 of the aforementioned 85,000 slots are reserved. If you qualify for the master’s cap and your petition is not selected, it will be re-entered into the regular cap for a second shot. This is the only way to increase your chances of being selected. The lottery takes place starting April 1st, so that is the earliest that your petition can be filed.

If your petition is selected, it will be processed. If it is approved, then you will be able to start working for your employer on October 1st, six months after filing. The H-1B is valid for three years initially with the potential to extend it up to six years. If your petition is not selected in the lottery, your fees will be refunded and you will need to wait until the following year to file again.

H-1B Fees

One notable aspect of the H-1B is the fact that the fees are considerably higher than they are for other nonimmigrant visas or the EAD. Here are the H-1B visa fees as of the 2018 filing season:

  • Basic filing fee for the I-129 – $460
  • Fraud prevention fee – $500
  • ACWIA training fee – $750-$1,500
  • Public Law fee – $4,000 (if applicable)

Altogether, the total mandatory cost comes out to between $1,710 and $6,460 depending on your situation. Keep in mind that all of these costs are the responsibility of your employer, which sets it apart from the EAD card.

H-1B Processing Time

There are numerous factors that go into your H-1B visa’s processing time, but the standard is six months for the I-129. You are able to use premium processing to speed this along, but you will still only be able to file on April 1st and work on October 1st due to the lottery cap, which means you will need to wait six months regardless.

However, if you have a job that makes your petition exempt from the cap, premium processing can make your H-1B processing time just 15 calendar days.

EAD Overview

The EAD is known as an Employment Authorization Document. As the name suggests, this document allows the holder to work in the U.S. for as long as the document is valid, which varies from case to case. We will refer to it as an EAD card since it usually comes as a plastic card with your information on it.

Overall, the EAD allows you to work if your status does not already allow it, though there are still certain statuses that do not permit working at all, even through the EAD card. Here are some of the people who may qualify for an EAD card:

  • A refugee or asylee (Temporary Protected Status – TPS) along with dependents or spouse.
  • F-1 student visa holders who are pursuing Optional Practical Training (OPT)
  • M-1 student visa holders who are also pursuing practical training
  • People who are in the process of adjusting their status
  • J-1 students and their spouses
  • Recipients of the Deferred Action for Childhood Arrivals (DACA)
  • Spouses of H-1B holders who are under H-4 status

Here are some of the people who would not qualify for an EAD card:

  • Certain nonimmigrant visa holders (L-1, O-1, H-1B, etc.) due to the fact that employment authorization is part of their status.
  • Lawful permanent residents (green card holders) since they are able to work without an EAD card.
  • The spouses of the above nonimmigrant visa holders (with the exception of the spouses of H-1B holders)
  • B-1 or B-2 visitor visa holders
  • Those cruise or airline passengers or crew members that are transitioning to another country.
  • F-1 and M-1 students who are not pursuing practical training

To get an EAD card, you need to file an I-765 Application for Employment Authorization. This form requires a $380 fee and takes about 90 days (3 months) to process, though it may take longer depending on the caseload of the service center.

H-4 EAD

Something that should be noted about the EAD is that this immigration tool is being placed under consideration for future use by the current presidential administration. President Trump may rescind the rule that allows the spouses of H-1B holders (H-4 holders) to apply for an EAD card. If this happens, H-4 holders will need to find an alternative way to work in the U.S. whether that is through a nonimmigrant visa or by entering the adjustment of status process.

EAD vs H-1B: Pros and Cons

Now that we’re well acquainted with both the H-1B and the EAD, here are some advantages and disadvantages they have in relation to each other.

H-1B Advantages

  • Validity period of up to six years
  • Wide range of eligible candidates
  • Allows spouse and dependents to live and work in U.S.
  • Mandatory fees are not the responsibility of the beneficiary
  • The processing time is a six month average with the possibility of expediting it to 15 days.

H-1B Disadvantages

  • Most petitions are restricted to the annual lottery, reducing chances of obtaining the visa and limiting the time frame in which a visa can be obtained.
  • The process of obtaining an H-1B is more complex
  • You are required to work in a specialty position
  • You must have at least a bachelor’s degree related to that position

EAD Advantages

  • Easy to obtain as there is only one form which can be submitted at any time.
  • Not limited to an annual cap or lottery
  • You do not need to work in a specialty position
  • You do not need any specific level of education

EAD Disadvantages

  • Typically valid for only 2 years
  • Only available for specific immigration cases
  • Does not allow for spouses or dependents to work in the U.S.
  • Filing fee is the beneficiary’s responsibility
  • The processing time is a minimum of 3 months with no way of expediting the process

Conclusion

Ultimately, like most immigration comparisons, the best method is the one that fits with your situation. If you are looking to work temporarily in the U.S. or are interested in making the transition toward a green card, the H-1B might be your best bet.

However, if you do not meet the requirements for the H-1B and can qualify for an EAD, then the answer is clear. If you are in the unique position of being able to choose from both, then you should work with your immigration attorney to determine which is best for your case.

How Our Immigration Attorneys Can Help

Immigration law is an incredibly nuanced field that requires the help of an expert to navigate successfully. One small error or oversight could cost you a significant amount of time and money. Because choosing between getting an EAD or an H-1B can have a drastic effect on your immigration path, it is a decision that is best made with the help of an immigration attorney.

The thousands of successful cases we’ve processed here at SGM Law Group have honed our understanding of how the USCIS works and what decisions are best for each individual case. By making use of our dedicated team of lawyers, you can be sure that your case is in the best hands.

To get in touch with one of our attorneys, just fill out this contact form and schedule your consultation today.

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