LEGAL DISCLAIMER: The information on this website is not legal advice and does not constitute any agreement by Bordeau Immigration Law, LLC to provide legal representation to any individual. This information is only intended to provide general information about common immigration matters and does not present an exhaustive discussion of immigration law. Immigration law and procedures change frequently and some information on this website may not be current. No individual should rely on information contained herein for his or her particular case and should consult with a qualified immigration attorney regarding specific questions about immigration status and eligibility.

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H-4/EAD INFORMATION

1. H-4 Work Authorization

2. How Long Will The H-4 Be Valid?
3. H-1B Status Related Information

4. Premium Processing Information

5. I-140 Petition Related Information

6. Traveling

7. F-1 Status Spouse Related Information

8. Can My Spouse Pay In-State Tuition If Studying On The H-4?

9. Regulations To Obtain H-4 Status/Work Authorization

10. Required Documents for H-4/EAD Filing

 

1. H-4 WORK AUTHORIZATION

   Who is eligible for H-4 work authorization?

    Eligible individuals include H-4 dependent spouses of principal H-1B workers who:

     -Have an approved Form I-140, Immigrant Petition for Alien Worker; or 

     -Have been granted H-1B status beyond the 6th year pursuant to the American Competitiveness in the 21st Century              Act based on a labor certification that was filed with DOL or an I-140 petition that was filed with USCIS at least

       365 days prior to the end of the 6th year in H-1B status. 

      If the H-1B worker does not satisfy either of the above requirements, the H-4 spouse is not eligible for an H-4 EAD. 

   How long will it take for the work authorization to be approved?

   The EAD will be adjudicated within 90 days, provided the individual is already in H-4 status. If an H-4 petition is still

   being reviewed by the USCIS, the 90 day clock will not start until the H-4 is approved. Note: in a Teleconference

   on 2/26/2015, the USCIS indicated that it is possible the H-4 EAD would be approved concurrently with the H-4,

   but the USCIS would have up to 90 days from petition approval to adjudicate the EAD. 

2. HOW LONG WILL THE H-4 BE VALID? 

     The H-4 EAD will be valid for a maximum period of 3 years, but may be much shorter. The H-4 EAD will be valid only

     for the validity period of the H-4 status. It will expire on the same date as the H-4 expiration indicated on the

     I-797 Notice of Action (or I-94 if the H-4 application was made abroad). The EAD can be renewed when the

     H-4 status is renewed for as long as the H-1B worker and H-4 spouse maintain their status. 

3. H-1B STATUS RELATED INFORMATION

     Can we file for the H-4 EAD together with an H-1B/H-4 extension request?

     Yes, the EAD may be filed at the same time as the H-1B/H-4 extension is filed. Please note: under H-1B/H-4

     extension rules, a petition may be submitted up to 6 months in advance. Normally, EAD's may only be filed 120 days

     in advance of the expiation date; however, the rule has been modified to allow H-4 EAD requests to be filed with the

     H-1B/H-4 extension. In a Teleconference on 2/26/2015, the USCIS indicated it is possible the EAD would be

     approved at the same time as the H-4 status, but the USCIS would have up to 90 days from petition approval

     to adjudicate the EAD.

     I am in H-1B status but haven't started the permanent residency process and/or my labor cetification case isn't filed

     yet. Can my spouse get H-4 work authorization? 

     No. Individuals who have not started the permanent residency process are not eligible. Moreover, in most cases, the

     2nd step of the permanent residency case, the I-140, must be approved. The narrow exception to this only

     effects individuals who have extended their H-1B beyond the 6th year based on a labor certification that was filed

     with DOL an I-140 petition that was filed with USCIS at least 365 days prior to the end of the 6th year in H-1B status. 

      If I lose my H-1B job will the H-4 EAD card be invalid? 

      The H-4 EAD requires both the H-1B worker and the H-4 spouse be maintaining H-1B and H-4 status respectively.

       If the H-1B worker loses his/her job, and a new employer hasn't filed a new H-1B to change employment, the H-1B

       status will no longer be valid, and therefore the H-4 status and H-4 EAD will no longer be valid. 

       If my spouse and I are both in H-1B status can one of us change to H-4 and work on the EAD?

       Yes. There may be advantages to this if one spouse has used 6 years in H-1B time and isn't far enough in the

       permanent residency process to extend the H-1B; or if there is a risk one spouse will lose his/her job, or if one

       spouse wants to work for more than one employer, etc. 

4. PREMIUM PROCESSING INFORMATION

     Should I premium process my H-1B, so the H-4 and EAD are approved more quickly?

     Any petition may be premium processed with an additional filing fee of $1225, payable to "Department of

     Homeland Security". With premium processing, the USCIS will review the H-1B/H-4 petition within 15 business days.

     My office does not charge for the premium processing request, but the government filing fee is required. In some

     cases, clients may want to premium process the H-1B to better assure an acceptable H-4 EAD processing time. 

     Should my employer pay for the premium processing? 

     An employer is not required to pay for premium processing the H-1B unless a faster approval is necessary for the

     H-1B worker's employment. Recall that if an individual is changing status, the H-1B status cannot begin before the

     H-1B petition is approved. If an individual is extending the H-1B status, the individual has an automatic 240 days of

     work beyond the H-1B expiration date while the H-1B extension is pending. For this reason, employers generally do

     not need to pay for premium processing. While the employer is usually not obligated to pay for premium processing,

     the H-1B worker may pay for premium processing for other reasons, such as travel, renewing a driver's license, or in

     this case, for obtaining the H-4 work authorization more quickly. 

     Can the H-4 EAD be premium processed?

     No. The H-4 EAD cannot be premium processed. The H-4, if filed by itself, also cannot be premium processed. The

     H-1B is the only petition of the three that can be premium processed; however, when the H-4 is filed concurrently

     with the H-1B, it is also premium processed, which should result in a faster EAD approval (again, the USCIS has

     indicated it could take 0-90 days to approve the H-4 EAD after the H-4 is approved). 

     Can I premium process the I-140 so my spouse can file for an employment authorization document?

      Yes, you can premium process any I-140, except a National Interest Waiver petition, as that kind of case is not eligible

      for premium processing. Again, the premium processing fee is $1225, payable to "Department of Homeland Security". 

      Should my employer pay for my I-140 premium processing so my H-4 spouse can file for work authorization?

      The employer is not required to pay for premium processing the I-140 petition. 

5. I-140 PETITION RELATED INFORMATION

     Can my spouse file the EAD request together with the I-140 petition?

      No. While the regulations allow filing the EAD with the H-1B/H-4 extension, the EAD cannot be filed until after the

      I-140 is approved. 

      I have a valid I-140 approved through a prior employer, but have transferred my H-1B to my current employer. Can

      my spouse obtain an EAD based on my prior I-140 approval?

      Yes. However, during a 2/26/2015 Teleconference, the USCIS indicated if an I-140 from a prior employer is

      withdrawn and revoked, the I-140 would no longer be valid and the H-4 EAD would not likely be approved. Note: 

      When asked during that same Teleconference whether an a approved EAD would be revoked where the H-1B/H-4

      status had already been granted based on that same I-140 and the prior employer later withdrew the I-140, the

      USCIS said it would investigate and reply later. 

      My current employer has filed multiple permanent residency cases for me. Does my spouse qualify based on

      earlier approved I-140 filed for a different job that I no longer hold? 

      Yes. Any approved I-140 which has not been revoked should allow the H-4 spouse to file an H-4 EAD application. 

6. TRAVELING

     Once my H-4 spouse obtains an EAD card, can my spouse travel internationally?

      Yes. In a Teleconference on 2/26/2015, the USCIS clarified that the EAD is only for work and is not valid for

      international travel. The applicant will need to maintain H-4 status and secure an H-4 visa stamp for re-entry to the

      US following international travel. When asked whether the H-4 could only be filed while the H-4 beneficiary

      was physically present in the United States, the USCIS said they would investigate and reply later. Note: Use of the

      H-4 EAD should not affect the H-4 spouse's non-immigrant status, because new regulations allow H-4 work permission.

7. F-1 STATUS SPOUSE RELATED INFORMATION 

    My spouse is in F-1 status and can work on campus for 20 hours per week. Can he/she change to H-4 status and work

    with the H-4 EAD? 

    Yes. The F-1 can change to H-4 status and obtain EAD. The H-4 EAD may be used for open-market employment (i.e.

     it is not restricted to a particular kind of employment, including self-employment, or to a certain number of

     hours). Note: there is a possibility the spouse could have a 'gap' in work authorization, however, ideally, the H-4

     EAD would be approved at the same time as the H-4 status; however, it might be that the H-4 status is approved first,

     as the USCIS has up to 90 days after approval to adjudicate the H-4 EAD. Once the F-1 spouse changes to H-4

     status, he/she will no longer have the F-1 on-campus work authorization. As such, if there is a "gap" between the

     H-4 approval and the H-4 EAD approval, the spouse wouldn't have work authorization. 

     Can my F-1 spouse hold both F-1 and H-4 status at the same time?

     No. An individual can only hold one kind of non-immigrant status in the United States. 

     If my F-1 spouse changes to H-4 status can he/she continue to study full time?

     Yes. Individuals in H-4 status may study full-time. 

8. CAN MY SPOUSE PAY IN-STATE TUITION IF STUDYING ON THE H-4?

     Tuition rates and policies are decided by colleges and universities and/or by the various boards and laws under which

     they operate. For guidance on this issue, check with the registrar at the college or university in question. My office

     cannot provide information about university admission/tuition policies as this is not an issue of immigration law. 

9. REGULATIONS TO OBTAIN H-4 STATUS/WORK AUTHORIZATION

     Does my spouse need to work in a STEM field or have a certain kind of degree to obtain H-4 work authorization? 

     No. The H-4 EAD allows for open market employment, meaning the H-4 worker can pursue any work

     opportunity, including contract work, self-employment, part-time work, etc. The H-4 EAD does not require

     the H-4 spouse to have a particular degree or a particular skill set to obtain the H-4 EAD. Nor does the H-1B

     worker have to have a particular kind of degree or job for the H-4 spouse to qualify. 

     Will my spouse also need a social security number to work?

     Yes. If your spouse does not already have a social security number, once the EAD is approved, the H-4 spouse

     can contact the Social Security Administration and apply for the card. See: http://www.socialsecurity.gov/forms/ss-5fs.pdf

10. REQUIRED DOCUMENTS FOR H-4/EAD FILING

       A copy of your most recent I-94 entry card (front & back) or  I-94 full page print out; a copy of your spouse's

       H-1B receipt notice or H-1B approval notice (also called "I-797 Notice of Action"); copies of all previous

       H-1B/H-4 approval notices (both top & bottom portions), or if you came in on H-1B/H-4 through consular

       visa processing (outside the US) provide a copy of the page in your passport showing your initial H-1B/H-4 entry

       stamp and also for any family member who will need H-4 status; copies of all IAP-66/DS-2019's (front & back),

       "No Objection Letter(s)," I-612 waiver approval notice (if applicable), any EAD's; all copies of I-20AB's

       (front & back) since you first entered the US and EAD card (if you had practical training); a copy of your driver's

       license (if you do not have a driver's license, you will need some other government issued document that contains

       a PHOTOGRAPH; a copy of the inside page of your passport with passport number, expiration date, and photo; a

       copy of your marriage certificate, with translation; copies of any dependent children's birth certificates (if applicable),

       with translations (if your children need H-4 status as well); copies of any dependent driver's licenses, (if applicable).