H-4 EAD Specifics!
As many already know, on May 26, 2015, certain H-4 dependent spouses will be eligible to apply for an Employment Authorization Document (EAD). Now that we know more of the specifics, I wanted to share them with you!
Who is eligible under the new H-4 EAD Rule?
As previously discussed, H-4 dependent spouses will be able to apply for an EAD as long as:
(1) the principal H-1B worker has an approved I-140, or
(2) the principle H-1B worker has extended H-1B status beyond the 6-year limitation that is either based upon a PERM labor certification application or an I-140 petition that has been pending for at least one year (Referred to as AC21 106(a) and (b) Extension).
H-1B Princple has an Approved I-140 Petition
An H-4 dependent spouse of a principle H-1B visa holder with an approved I-140 petition (under any of the EB preference categories) will be able to apply for an EAD.
Further, if an H-1B visa holder has an approved I-140 and then transfers to a different company, the H-4 dependent spouse may still be eligible to apply for an EAD as long as the approved I-140 has NOT been withdrawn. This option does carry a heavy risk because if the previous employer withdraws the approved I-140 either before or after the EAD is received, the EAD will most likely no longer be valid.
H-1B Principle has received an Extension Beyond the 6th Year Limit:
If the H-1B visa holder has received an extension beyond the 6 year limit under AC21 106(a) or (b), the H-4 dependent spouse can apply for an EAD. Whether the basis for the 1 year extension(s) was a pending PERM application or I-140 petition, they must still be pending (active) at the time you apply for the EAD.
Documentation Required:
In order for an EAD to be issued, the H-4 applicant will need to file Form I-765 along with the filing fee of $380. The application should be accompanied by proof of H-4 status along with evidence establishing that the principle H-1B visa holder has maintained status and meets the criteria discussed above.
- Proof of your Status: You must submit a copy of your current I-797 approval notice for Form I-539 or Form I-94 showing your admission as an H-4 non-immigrant or your most recent proof of extension of stay; and
- Proof of Relationship to the Principle H-1B Holder: You must submit a copy of the marriage certificate for you and the principle H-1B holder
In addition, depending on the basis for work authorization, the following documentation will be needed:
Basis for Work Authorization: Approved I-140
If the basis for work authorization is an Approved I-140, you must submit the I-140 Approval Notice. If you do not have access to the I-140 approval notice, you may ask USCIS to consider secondary evidence in support of your application for an EAD. For example, you may submit the receipt number of the approved I-140 petition.
Basis for Work Authorization: H-1B Principal Received AC21 106(a) or (b) Extension
If the basis for work authorization is that the H-1B principle received an extension based on AC21 106(a) or (b), you can submit copies of the H-1B principle’s passports, prior Forms I-94 and H-1B approval notices. Further, proof of the pending PERM application or pending I-140 petition is required.
If the extension was based on a pending PERM application, you may submit a copy of a print out from the DOL showing the PERM status.
If the extension was based on a pending I-140 petition, you may submit a copy of the I-140 receipt notice.
Note: As a convenience, you may file an EAD application along with an application to Extend/Change Non-Immigrant Status. But, keep in mind that USCIS will not process the EAD application until AFTER USCIS has made a decision on your Extension or Change of Status application. This means that the 90 day waiting period for adjudicating your EAD application will not start until USCIS has made a determination on the underlying H-4 status.
EAD Validity Period
The EAD validity period will match the H-4 dependent spouse’s period of stay (up to a 3 year maximum).
I hope I have provided a bit more insight into the new rule. We will know more once applications are filed and cases are adjudicated. If you have any questions regarding this rule, please feel free to leave me a comment!
Thank you so much for your response
Of course!
Hi, Is there any benefit of EAD if my H4 spouse is not planning to work in the near future? Also, what are the negatives if she still applies and received the EAD? Thank you.
Hi Mohammed!
If she is not planning to work in the near future, it won’t hurt anything. She can still apply for it and have it in hand so that when she is ready to work, she can do so immediately as long as the EAD is still valid. I hope this helps!
Thank you. I am on H1B extension beyond 6 years with approved I-140. I have to apply for my H1B extension again when my current H1B expires and the GC priority date not yet current. At that time do my spouse have to reapply for EAD or H4?
Hi!
Yes, she will have to request an extension of her H-4 status and EAD at that time. If she applies for the EAD now, it will be valid through the end of her current period of stay. When it comes time to file your H-1B extension, she will need to apply for the H-4 extension and EAD again. Thanks!
Is there any specific educational qualification required to apply for H4 EAD? (Like for H1B)
Hi Kumar! No, there is not an educational requirement for an H-4 dependent spouse to obtain an H-4 EAD.
this is what wriiten in murthy.com
Note that if the I-140 was approved, but then withdrawn by the employer, the H-4 spouse may potentially still qualify if the H1B worker has been approved for an extension of status beyond six years under the applicable AC21 provisions.
http://www.murthy.com/2015/02/25/overview-of-the-new-h-4-ead-rule/
Hi! As mentioned, we are still not 100% sure how this will work. The quoted text above also says “potentially” will still qualify based on this scenario. Because of how the rule is written and the policy guidelines, there could potentially be an argument both ways. Unfortunately, we will have to wait until more guidance is issued by USCIS.
H1B extension 6 yrs beyond with I-140. Now I-140 is withdrawn by previous employer. so am I eligible to apply for H4-EAD for my spouse?
Hi! Under this scenario, the position of USCIS appears to be that the I-140 will need to be approved and NOT withdrawn in order for an H-4 dependent spouse to be eligible for the H-4 EAD under this category. We will have to wait for more information from USCIS to be absolutely sure. I will post updates once they come in.
Hi Krystal,
If the H1 and H4 were expiring in sept 2015, which one of the following, would be the best option to get EAD without an interruption?
– Applying for an Premium processing H1-H4 extension in April 2015 (6 months prior to expiration) and apply for EAD with a new extended H4; or,
-Concurrently apply for H4 extension while filing EAD. I understand that first H4 extension will have to be approved for EAD processing to start; or,
– Apply for EAD on May 26th and once approved, then apply for H1 and H4 extension in Aug 2015, and later apply for EAD extension which would have ended in Sept 2015.
Please suggest the best option.
Thank you
Good morning! The best way to go in this situation would be to file the H-1B and H-4 extension in premium processing in April and once approved, file for the H-4 EAD on May 26th, 2015. The other 2 options are less efficient and could potentially cause some headaches. I hope this helps!
Can we submit H4 EAD online or we need to send by mail.
Hi! The “H-4 EAD” has not yet been listed as one of the categories eligible to e-file form I-765: http://www.uscis.gov/e-filing-i-765. Unless the list changes to include H-4 EADs, the application will have to be mailed in.
If the H4 EAD spouse goes to India after receiving the EAD do they still need to go for H4 Visa stamping?
Hi! Yes, even if your spouse receives the H-4 EAD, your spouse will have to obtain H-4 visa stamping if it is currently expired.