EAD vs H-1B: All You Need to Know to Make the Decision

Globally, working in the U.S is a highly sought-after goal. There are numerous paths to join the American workforce, and the EAD and the H-1B are two common pathways. Knowing how these two immigration options relate and differ can be vital to your efforts to work in the U.S. Here are the pros and cons of the EAD vs. H-1B that will help you to make the right decision and learn about the critical differences between the two.

EAD vs. H-1B Difference: Pros and Cons

The most significant difference between EAD and H-1B is that an Employment Authorization Document (EAD) is strictly an approval to work in the U.S. for foreigners who are on a non-immigrant visa.

On the other hand, an H-1B is a non-immigrant visa that allows foreigners to work for a specific employer in a specialized position. If a sponsorship opportunity arises, H-1B workers may eventually adjust status to lawful permanent residency.

Now that we understand the fundamental difference between the H-1B and the EAD, let’s explore the advantages and disadvantages.

If you were selected in the H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.

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H-1B Advantages

• Validity period of up to six years
• Wide range of eligible candidates
• Allows spouse and dependents to live and work in the U.S.
• Mandatory fees are not the responsibility of the beneficiary
• The processing time is relatively short at three to four months, with the possibility of expediting it to 15 business days
• The H-1B is dual intent, meaning H-1B workers can simultaneously maintain their legal status as a temporary nonimmigrant worker but also legally pursue permanent residency (a green card).

H-1B Disadvantages

• Most, but not all, petitions are restricted to the annual lottery, reducing the 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 must work in a specialty position
• You must have at least a bachelor’s degree related to that position, or equivalent work experience.

EAD Advantages

• Valid up to 5 years
• With only one form to submit, it is easy to obtain
• 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
• The processing time is generally two to three months. Expediting is allowable under certain conditions.

EAD Disadvantages

• Only available for particular immigration cases
• Does not allow spouses or dependents to work in the U.S.
• The filing fee is the beneficiary’s responsibility

H4 EAD Versus H1B: Is One Better than the Other?

H4 EAD Eligibility for Spouses

Not all spouses on H4 status are eligible for EAD cards. To qualify, the principal H-1B visa holder must meet one of the following conditions:

• They are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker.
• They have received an H-1B extension beyond the standard six-year limit. This extension is typically granted when a PERM labor certification or an I-140 petition has been pending for at least 365 days.

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People on H-1B status frequently ask our law firm if it’s better to work on an H-4 EAD or use their H-1B. While the answer will largely depend on your personal circumstances, below are some pros and cons.

Advantages of H4 EAD Over H-1B

1. One of the pros of getting an H4 EAD is that the cost is typically lower than going through the H1B petition process.
2. Another pro is that the H4 EAD doesn’t have the prevailing wage requirement, which comes with the H-1B.
3. If you intend on taking a leave of absence or gaps in employment, the H4 EAD is more flexible compared to the H1B.
4. You are not restricted to which employment position or salary with the H4 EAD. If you need to switch employers, the flexibility of the H4 EAD is greater.

Advantages of H-1B Over H-4 EAD

1. One of the main advantages of the H-1B over the H4 EAD is that you are not dependent on your spouse’s working status for work authorization. If your H-1B spouse, for example, were to lose their status, your work status would be in jeopardy as well, since it’s dependent on their visa.
2. The other advantage of the H-1B over the H4 EAD is that the H-1 B allows continued employment while the H-1 B extension is filed and pending.

Need help with your H-1B petition? Contact VisaNation attorneys

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Should I Switch from H-1B to EAD?

Switching from H-1B to EAD is useful when you are having trouble transitioning to a new employer with your H-1B or if you don’t want to be tied to one employer, as you would be with H-1B. EAD allows you to work for any employer, and switching to it from H-1B can be helpful to some foreign workers who need that flexibility.

Keep in mind that to switch from H-1B to EAD, you will first need to apply and have USCIS approve your EAD. The application process is quite simple. You must submit Form I-765, attach relevant evidence, and pay the filing fees. You will generally receive a response within 90 days.

Do I Need an H-1B If I Have An EAD?

You don’t need to get an EAD if you are already working in the U.S. on an H-1B visa. If you were to use an EAD while on an H-1B, this could terminate your H-1B visa status. This is because your H-1B visa is employer-specific, while EAD is not employer-specific work authorization.

This also applies the other way around. If you already have an EAD, you do not need to apply for an H-1B. However, because an H-1B is a dual-intent visa, meaning you can adjust status to lawful permanent residency, it could be worth getting an H-1B visa. Again, this decision depends on your current residency status and the visa on which you entered the U.S.

More About The H-1B Visa

The H-1B is a non-immigrant visa that allows specialized workers to work in the U.S. Due to its relatively low eligibility requirements, the H-1B is the most popular non-immigrant visa available. Unfortunately, this makes the chances of acquiring much more difficult.

Here are the basic requirements you need to qualify:

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

While these may seem simple, they have some nuances to note. For example, the USCIS carefully scrutinizes whether or not a position is a specialty. 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 tricky to get approved.

The H-1B Lottery

But there’s one obstacle you must overcome when considering the H-1B vs. EAD: the H-1B lottery. Due to the high volume of H-1B registrations the USCIS receives each year, USCIS holds an annual lottery. There are only 85,000 total visas in the cap, and with hundreds of thousands of registrations each year, the selection odds can be relatively low.

Master’s Cap

A master’s degree gives you access to the master’s cap, for which the first 20,000 of the 85,000 slots are reserved. If you qualify for the master’s cap and your petition is not selected in the regular cap round, it will be re-entered into the master’s cap for a second shot. This is the only way to increase your chances of being selected.

Registration and Petition Filing

The lottery registration period starts in early March, and if selected, your employer can file an H-1B petition on your behalf during a 90-day window starting April 1st.

Validity Period and Extensions

If approved, you can start working for your employer on or after October 1st, six months after filing. The H-1B visa is initially valid for three years, with the potential to be extended up to six years.

If you were selected in the H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.

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H-1B Fees

One notable aspect of the H-1B is that the fees are considerably higher than for other non-immigrant visas or the EAD. Here are the H-1B visa fees:

President Trump has signed a new proclamation introducing a $100,000 fee for new H-1B petitions. This change could impact employers and foreign workers planning to apply, but exclusions apply. Read our full article for more details

Remember that all of these costs are your employer’s responsibility, which sets it apart from the EAD card.

In contrast, the EAD fee is $470 for online filing or $520 for paper filing.

H-1B Processing Time

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

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

More About EAD

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.

Overall, the EAD allows you to work if your status does not already allow it, though certain statuses still do not permit working, 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) and dependents or spouses.
• 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 non-immigrant visa holders (L-1, O-1, H-1B, etc.) have employment authorization as part of their status.
• Lawful permanent residents (green card holders), as they can work without an EAD card.
• The spouses of the above non-immigrant visa holders (except the spouses of H-1B holders)
• B-1 or B-2 visitor visa holders
• Cruise or airline passengers or crew members 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 $470 fee for online filing or $520 for paper filing, and takes about two to three months to process, though it may take longer depending on the caseload of the service center.

H-4 EAD

H4 Visa EAD FAQs | Common H4 EAD Questions Answered

Key Takeaways on EAD vs. H-1B

Ultimately, like most immigration comparisons, the best approach is the one relevant to your situation. For example, if you are looking to work temporarily in the U.S. or are interested in eventually transitioning 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.