What are the requirements for an H-4 EAD?
Immigration attorney summary: An H-4 visa holder is eligible for an H-4 EAD if she meets the following requirements:
- Holds valid H-4 status
- H principal spouse holds H-1B status
- H principal spouse is the beneficiary of an approved I-140 petition or is granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)
Detailed explanation from employment-based immigration lawyer:
There are certain specific requirements in order to obtain an H-4 employment-authorization document (H-4 EAD).
First, the applicant must hold valid H-4 status.
Second, the H-4 visa holder must be married to an H-1B visa holder. Spouses of H-2B, H-2A, and H-3 visa holders do not qualify.
Third, the H-1B spouse must have a USCIS approved I-140 petition. It does not matter whether the petition is an EB-1, EB-2, or EB-3 I-140 petition. Please note, as long as your spouse has an approved I-140 petition, you are eligible for an H-4 EAD even if you are waiting to file for adjustment of status because your spouse’s priority date is not current.
Alternatively, an H-4 visa holder may be eligible for an H-4 EAD if the H-1B spouse secured an H-1B extension under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), which allows H-1B extensions beyond the standard 6 year H-1B limit. For a H-1B visa holder to be eligible for a 1 year H-1B extension beyond the 6 year limit under AC21, the H-1B visa holder must be the beneficiary of a PERM labor certification application or an I-140 petition which was filed at least 365 days before expiration of the 6th year of H-1B status. Please note, the PERM labor certification or the I-140 petition do not have to be approved to qualify for an H-1B extension under AC21. However, the PERM labor certification application or I-140 application must still be pending. The beneficiary will no longer qualify for an H-1B extension under AC21 if she has received a denial or notice of revocation.
Once an applicant obtains her H-4 EAD, she may work for any US employer in any legal capacity. An H-4 EAD holder is authorized to work full-time or part-time for one or for multiple employers at the same time. If you want to determine whether you qualify for an H-4 EAD or if you would like a personalized employment-based visa USA strategy, contact our employment-based immigration lawyer.
What is the H-4 EAD application process?
Immigration attorney summary: The H-4 application process is similar to most USCIS benefit applications. The applicant prepares and files the relevant immigration forms, pays the required filing fees, and waits for USCIS processing of the application.
Detailed explanation from business immigration attorney:
To apply for an H-4 EAD, the applicant must complete Form I-765, Application for Employment Authorization, and file it with USCIS. The H-4 EAD must also include the appropriate filing fee, which at the time of writing this article is $410. The applicant should include proof of her H-4 status and her spouse’s H-1B status as well as proof of the H-1B spouse’s approved I-140 if applicable.
What happens with my H-4 EAD if my spouse’s I-140 is revoked?
Immigration lawyer summary: If you already have your H-4 EAD, it should remain valid until its expiration date. However, you will no longer be qualified to file a new H-4 EAD application if your H-1B spouse’s I-140 petition is revoked.
Detailed explanation from employment-based immigration lawyer:
An H-4 visa holder is not eligible for an H-4 EAD if the H-1B principal spouse’s approved I-140 petition is revoked. However, if the I-140 petition is revoked after approval and receipt of the H-4 EAD, then the H-4 EAD will continue to be valid until the expiration date indicated on the card. USCIS has stated that is has discretion to revoke the H-4 EAD upon an I-140 revocation. This means that the H-4 EAD will remain valid until its expiration date or until USCIS takes a specific action to revoke the H-4 EAD. Please note, you will not be able to file an H-4 EAD extension if your H-1B spouse’s only I-140 petition has been revoked.
Employment-based immigration attorney tip: If your H-1B spouse has more than one approved I-140 petition, you will continue to be eligible for an H-4 EAD even after revocation of one the I-140 petitions.
What happens with my H-4 EAD if my spouse loses H-1B status?
Immigration attorney summary: If your H-1B spouse loses her H-1B status, you may lose your H-4 status and H-4 EAD.
Detailed explanation from employment-based immigration attorney: If an H-1B visa holder loses her job, there is a 60 day grace period during which she may find another H-1B job. Unless another H-1B petition is filed by the 60th day after H-1B expiration, your H-1B spouse will need to leave the US. Because H-4 status is tied to the principal H-1B status, in such a case, the H-4 visa holder will need to depart the US too. However, if your H-1B spouse is able to find another H-1B employer during the 60 day grace, then your H-4 status and H-4 EAD will remain valid.
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Can I work before I receive my H-4 EAD?
Immigration lawyer summary: No, H-4 visa holders can only work with a valid EAD.
Detailed explanation from employment-based immigration lawyer:
An H-4 visa holder is only allowed to work with a valid employment authorization document (EAD). So you may not work until USCIS approves your EAD application and you receive your EAD card. Please note, if you work before you receive your H-4 EAD it will constitute unauthorized employment which can prevent you from obtaining a green card, another visa, or employment authorization.
Once you receive your H-4 EAD, you can work for any US employer in any legal capacity. You may work full-time or part-time for one or for multiple employers at the same time. Unlike your H-1B spouse, you will not be limited to working for one particular US employer. This flexibility is one of the biggest advantages of the H-4 EAD.
Our Employment-Based Immigration Lawyer is Here to Help You
Do you need assistance preparing and filing an H-4 EAD application? Our employment-based immigration attorney can devise a custom-tailored H-4 visa strategy and prepare your H-4 EAD application in compliance with all relevant employment-based immigration rules. As an experienced employment-based immigration law firm, Pandev Law has the knowledge and experience to guide you through your H-4 EAD process.
Please complete our contact form, email [email protected], or call us at (212) 220-6652, to schedule a consultation with our employment-based immigration attorney.
During your consultation, our employment-based immigration lawyer will provide an honest assessment of your case, and a recommendation for your next steps.
Disclaimer: This blog article is provided by Pandev Law, LLC for general educational and informational purposes only. Although this article discusses general legal issues, it does not constitute legal advice nor does it establish an attorney-client relationship. No reader should act or refrain from acting on the basis of any information presented in this article, or elsewhere on this website, without seeking the advice of appropriate legal counsel, or other professional counsel, licensed in the relevant jurisdiction. Pandev Law, LLC expressly disclaims any and all liability with respect to any actions taken, or not taken, based on any content of this article or website. This blog article may constitute attorney advertising. Prior results do not guarantee a similar outcome.
