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Last Updated On: January 17, 2024 | Published On: September 15, 2022
On May 26, 2015, the USCIS began accepting applications for H-4 dependent spouses to obtain employment authorization. This long-awaited change is a relief for the thousands of H-4 holders who will be eligible for the benefits of employment. We’ve received many questions regarding qualifications, documentation required, processing procedures and the EAD lawsuit. Below is our H4 visa EAD FAQ series based on information released by USCIS.
The H-4 visa is a dependent visa for the spouses of H-1B, H-2A, H-2B, and H-3 holders in the U.S. This visa status is contingent upon the principal H visa holder’s status, so things such as extensions, transfers, terminations, and revocations applied to the principal holder will apply to all dependent H-4 holders.
While being able to bring a spouse over to live with you during your H-1B stint is a great benefit of the visa, having that spouse be able to earn an income can be vital to the success of your endeavors in the country.
Now, with this new rule, H-4 holders can apply for Employment Authorization Documents (EAD) in order to work in the U.S. freely. However, there are stipulations to the rule that must be taken into consideration when applying.
In order to qualify for employment authorization documents, there are two main criteria. First, the principal H-1B worker has to have an approved I-140 OR have been approved for H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act (AC21). This act allows nonimmigrants under H-1B status to continue to work in the U.S. while they transition to lawful permanent resident status.
Learn the similarities and differences between an EAD card vs Green Card.
This H-4 EAD FAQ series may help you determine whether you are eligible for work authorization. Any situations not addressed below should be addressed with a qualified immigration attorney.
A C26 EAD is just the USCIS category code for the H4 visa Employment Authorization Document.
The H4 EAD application fee is $410. You can see a line-by-line breakdown of the individual components of this in the chart further down.
Fortunately, this is not a one-time opportunity. As an H-4 immigrant who receives an EAD, you are able to renew your authorization for as long as you maintain eligibility in accordance with 8 CFR 214.2(h)(9)(iv). There also isn’t a cap on the number of H4 EADs issued so you can get one as long as you meet the requirements.
In order for individuals to maintain H-4 status, they must be in the United States and in order to apply for employment authorization you must be in H-4 status. Therefore, you must be in the U.S. to apply.
The requirements explicitly state that to be eligible for an H-4 EAD the H-1B spouse must have an approved Form I-140. If for whatever reason the USCIS revokes this petition, you would not qualify. However, you still have the potential to qualify if your spouse received an extension on their H-1B status under section 106(a) or (b) of AC21.
If you have already received your H-4 EAD and your spouse’s I-140 is revoked, then your employment authorization will remain valid until it expires. When you reach the end of your H-4 EAD validity period, you will only be able to renew it if your spouse has an approved I-140.
If your spouse loses his or her H-1B job and falls out of status, there is a 60-day grace period with which a new H-1B job can be acquired. After that, both you and your spouse will be considered out of status and your EAD will be invalid.
The regulations state that your H1B spouse needs to just have an approved I-140. It does not state that it has to be filed by the current employer or even the same one who filed their Form I-129. With that being said, it shouldn’t be an issue if it was filed by a previous employer.
Advance parole allows foreign nationals to re-enter the U.S. without a valid visa status. This is particularly helpful for those that have applied for adjustment of status but need to travel out of the country in the interim. However, having advance parole means that your spouse does not have a valid H-1B status, which also means that you do not have a valid H-4 status and are not eligible for EAD.
Fortunately, your employment authorization is not tied to any single petition, but rather the fact that an approved petition exists under your spouse’s name. Therefore, if your spouse changes jobs and has a new I-140 filed under his or her name, you can still file for an extension or renewal of your H-4 EAD.
The USCIS says on its site that, as long as you are still eligible for employment under the H-4 visa (meaning that your H-1B spouse still has an I-140 petition approved with the USCIS), then you can file a new I-765 form within 180 days of your EAD’s expiration. It is not advisable to file more than 180 days before this date.
As of January 2017, the USCIS is providing a 180-day extension to anyone who has filed a new I-765 for their EAD and is still eligible for employment authorization.
If your EAD card is lost, stolen, damaged, or destroyed, then you will need to get a replacement. This is done the way that you would get a renewed card. Just file a new I-765 along with the filing fee to replace your card.
Before you can apply for your EAD, you will need to obtain the H-4 visa, which will likely require an interview if you are not already in the U.S. under a different nonimmigrant visa. This interview is often the cause for concern among prospective H-4 holders, but it functionally exists to make sure that your relationship with your H-1B spouse is legitimate.
Some sample questions for the H-4 interview might include:
These are just some questions that may or may not appear in your interview. The best advice is to answer honestly and to say that you don’t know the answer to a question if you are unsure. Lying or exaggerating the truth can lead to much more serious consequences than having your H-4 denied. Speak with your immigration attorney to learn how you can best approach your interview.
One of the biggest advantages of gaining employment authorization through your H-4 status is having unrestricted work authorization which means you are not limited to a specific employer and can even consider self-employment.
Under normal circumstances, your H-4 EAD validity period would be granted for as long as you had H-4 status. This means that once your H-1B spouse needs to renew his or her visa, you would need to also renew your H-4 and EAD to extend the validity period.
Your H-4 visa status is tied to your H-1B spouse’s status. Therefore, it will be valid for as long as the H-1B is valid, which is an initial period of three years with the opportunity to extend it to a maximum of six.
The H-4 EAD timeline begins with the acquisition of the H-1B visa on behalf of your spouse. There are many factors that go into the H-1B processing time including whether your spouse’s petition is cap-subject or cap-exempt, how busy the USCIS service center is, whether your spouse used premium processing. You can check service center H4 EAD processing times here.
Since there are no restrictions on self-employment for the H-4 EAD, you technically are not prohibited from hiring employees if you begin your own business with your work authorization. However, you should consult an immigration attorney before making any decisions to avoid falling into any legal situations that could jeopardize your status.
You can file Form 1-765, along with Form I-539 and the I-129 at the same time. When it comes to extending your non-immigrant status, the I-129 for the H-1B applicant has to be filed no more than 6 months before the beginning date of employment. Be aware that the USCIS cannot adjudicate your I-765 until they make a determination about the H-1B spouse’s eligibility for status.
A number of documents are necessary when demonstrating proof of eligibility. You’ll need:
Additional details regarding the requirements can be found here.
The H-4 visa requires you to submit a DS-160 form, which means that you will be responsible for a $190 fee. Aside from that, to apply for an EAD you will need to file an I-765 Application for Employment Authorization. This will incur an H-4 EAD visa fee of $410. You will also need to submit to a biometrics appointment (fingerprints), which will cost $85, bringing the total H-4 EAD cost to $495.
No. Unfortunately, you will be responsible for all H-4 fees. Neither your employer nor your spouse’s employer is obligated to pay them. However, they may do so if they choose EAD.
No, you do not need to show that working is a necessity for your financial stability in the U.S.
Each case varies depending on the service center that is processing the petition. However, the general average for the H-4 EAD processing time is around 90 days or 3 months. This time could be increased if your service center is busier than usual or if you are served a Request for Evidence or Notice of Intent to Deny.
Unfortunately, premium processing is not available for Form I-765. It is a service that is reserved for visas that require the I-129 and I-140 petitions, so it could potentially be used for your spouse’s H-1B or green card petitions.
In some cases, in lieu of H-4 EAD premium processing, the USCIS may grant an accelerated processing time for your petition under extreme circumstances.
According to the USCIS, they will not backdate the validity period of your EAD to when H-4 status was granted. The date of your EAD will, be valid from the date your I-765 is adjudicated or the date in which you acquire H-4 status (whichever is later). Likewise, the EAD expiration date will be when your H-4 status expires.
You can request expedited processing if you can demonstrate to USCIS that you would sustain a financial loss or urgent medical situation related to the processing of your H4 EAD status.
It can take approx. a week to ten days to receive your card. You will see the status say, “sent for printing”.
You are not permitted to work with an ITIN number. Wait for your Social Security card to arrive (takes about 5-6 weeks).
The H4 EAD category C26 is not eligible for the 180 day automatic extension. You will need a physical card per I9 compliance to work. Other EAD categories (not H4) are eligible for the 180-day extension.
Receiving a request for evidence can surely add time to your case. It’s best practice to respond as early as possible and discuss it with your immigration attorney.
An EAD is not the same thing as an entry document, it only serves to permit you to work in the U.S. If you leave the country and want to reenter you must have a valid passport and H-4 nonimmigrant visa (or another travel document) with you.
This H-4 EAD FAQ series is intended to act as a guideline for filing. If you have additional questions not included on this H-4 EAD FAQ page, please contact a VisaNation Law Group attorney to schedule a consultation.
No. Fortunately, unlike the H-1B visa, there is no annual cap to the H-4 EAD. So there is no need to worry about having your petition rejected on that account.
While it is possible for you to travel without directly jeopardizing your status, it is usually not recommended to do so until your EAD has been approved. This is because the USCIS could potentially send a request for additional information or a Notice of Intent to Deny. If you are not in the U.S. to be able to address and respond to either of these, the USCIS may consider your case abandoned and deny your EAD.
Yes. The only way to get employment authorization, in this case, is to already have H-4 status. Your H-4 status and your EAD are two different processes, as you will need to have your visa status approved before you can get your EAD.
Yes, you can. The H-4 visa is considered a “dual intent” visa, which means that you can pursue a green card without jeopardizing your nonimmigrant status. There are a few ways to go about obtaining your green card while on an H-4 visa:
Some other nonimmigrant visas allow you to work in the U.S. automatically, such as the O, E, and L class visas. Employment authorization is incorporated into the visa itself, even for spouses. However, the situation is different for the H-4. Even if you were authorized to work under a different visa, you will need to file for a new EAD for your H-4.
While this rule is very advantageous to the spouses of H-1B holders, it may not last forever. The rule has come under the administrative spotlight over the past several months, meaning that a day may soon come when H-4 holders are no longer able to apply for work authorization. In a situation like that, you need to know what your alternatives are.
The first and most viable solution is to obtain a work visa yourself. Depending on your field of study, educational background, and the nature of your occupation, you might qualify for an O-1 or even an H-1B visa yourself. If you are from Mexico or Canada, you can apply for the TN visa, though the list of available occupations for this category is relatively short.
Alternatively, your spouse can attempt to change his or her nonimmigrant status to a visa that permits spouses to work such as the O or E class visas. These visas in particular also allow dependents to work in the U.S. Keep in mind that changing one’s status can be tricky, especially when you have an approved I-140 pending with the USCIS.
The VisaNation Law Group attorneys have helped countless individuals obtain employment authorization documents so they can confidently live and work in the United States. If your spouse needs assistance with their H-1B visa, we have an unparalleled track record in approvals as well. Learn more by scheduling a consultation today!
VisaNation Law Group attorneys can better explain the H-4 EAD FAQs during your initial consultation. They have a thorough knowledge of the H-1B process and this new EAD rule. Based on the predictions, an estimated 179,600 H-4 visa holders are eligible for this work authorization. If you would like to speak to an attorney about obtaining an EAD card under H-4 status, click the button above to schedule your consultation today.
Tags: EAD, H-1B Rules, H-4
