H-4 EAD Rule (Updated As of Nov 10, 2016)

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H-4 EAD Regulations

I have finished my first review of H-4 EAD Regulations (effective 26 May 2015). Here are the takeaway points:

  • H-4 spouse qualifies only if H-1B spouse has an APPROVED I-140 Or
  • A one-year H-1 extension beyond initial 6 years (based upon the one-year extension rule)
  • Concurrent filing of Form I-765 (for EAD) with H-4, I-539 (change of status) will be allowed
  • H-4 EAD requests can be filed up to 6 months ahead of start date (like we can file H-1 petitions)
  • Premium processing of H-4 or H-4 EAD is not available
  • H-4 EAD will be issued if both H-1 and H-4 are maintaining status and submit appropriate primary or secondary evidence regarding marriage, status an approval of I-140/H-1
  • Even if you are in 7th, 8th, 9th … year of H-1/H-4, you can get H-4 EAD
  • H-4 EAD is not restricted to any field. You can do what you like.




    Updated 26 February 2015
  • H-4 EAD rule is an option, not an obligation. You can obtain an EAD without a job offer AND you do not have to work if you choose not to; the EAD will remain valid.
  • It is uncertain whether or not your spouse can get an H-4 EAD based upon a prior revoked I-140. I see indications in the regulations that go both ways: 'yes and no'. USCIS has given an opinion that they will NOT allow H-4 EAD if the supporting I-140 has been revoked.
  • How to file: If your derivative spouse is in a status other than H-4, I-539, change of status has to be filed to change them to H-4 status (you can concurrently file for EAD, Form I-765). If your spouse is already in H-4 status, you will file the I-765 only.
  • Additional Information
    1. There is no premium processing of H-4 EAD.
    2. No online filing. Paper filing only.
    3. Any EAD applications received before 26 May 2015 will be rejected.
    4. H-4 EAD provisions are a pemanent addition to the regs.
    5. I-140 approved for a previous employer still leaves spouse EAD-eligible, as long as the I-140 is not revoked. If I-140 is revoked, the benefit of H-4 EAD is terminated.
    6. EAD end date will coincide with the H-4 approval date.
    7. USCIS will often (but not always) adjudicate concurrently filed I-539 and I-765 at same time (but not always).
    8. You can start working ONLY when you receive the EAD.
    9. There will be no 240-days grace period to continue working if the EAD expires, even if you have applied for an EAD extension.
    10. You can start your business on the EAD. 11. You can work (or not work at all, if you want) in any field and for any employer. 12. USCIS is expecting 179,500 H-4 EAD application just in this year.


Updated 4 March 2015

 

More information on H-4 EAD: How deeply will the government probe H-1 maintaining status issues; I-140 approved through an earlier employer; Can I also apply for advance parole; mailing address for the apps; Visa or Change of Status; Should I apply for H-4 now; Can I work on my H-1 while COS/EAD request is pending; 7th year H-1 approved, but not I-140.


 
Updated 20 March, 2015

There are several discussions regarding H-4 EAD in yesterday's community conference:


 


 

Updated 7 April, 2015

Important, five-minute discussion on H-4 EAD rules and updates. Can there be a risk in filing for H-4 EAD? Answer: potentially, yes.


 

H-4 EAD Frequently Asked Questions (Transcript for the above video)

Some questions are coming up repeatedly so I am going through them.   

The first frequently asked question is - Rajiv what are you going to charge for doing an H-4 EAD.

We have thought about this very carefully. We don’t know to what extent USCIS is going to go. There are certain dangers even in applying for an H-4 EAD. The more work we have to do the more we will have to charge. The problem is right now USCIS could create H-4 EAD as a routine matter. Nearly a matter of having the Form I-765 with the accompanying documentation and the form instructions tell you what documentation to file.

The problem is one of the pre requirements of the H-4 EAD grant is that the H-1 person must be maintaining status. That’s were the real trap is – maintaining status because H-1 is subject to so many rules that you could without knowing have violated status and if USCIS starts getting into your status we could be looking at an extensive documentation fight with USCIS. Not only that, here you are trying to get your spouse H-4 EAD and you could end up losing your own H-1. It can get complicated. So we thought about it and we kind of took the middle road saying we don’t know how far they are going to go with this H-4 EAD investigation.

 So we will charge 1600 dollars for legal fees which in some ways is excessive because it is just a one page form then we don’t even need to charge that much. But then you don’t even need a lawyer if it is going to be simple. We are going to charge 1600 until we figure out how far they are going to go with the investigation because ours is a flat fee. If we spend one hour, that is what we charge and if we spend 10 hours that’s what we charge. So we have to come out with some kind of formula. What I recommend is do it yourself and if you get into trouble then hire a lawyer.

Another question always asked is - What if I am relying upon the I-140 of an old employer.

It doesn’t matter whose I-140 it is as long as you have an I-140 approved through any employers as long as that I-140 has not been revoked. That forms the basis for the H-4 EAD applications.

Note:  You are welcome to log into our conference calls every other Thursday. Talk to me free of charge. I will be happy to guide you. I have actually put out all the information that people need both on my blog on immigration.com as well as my posting in LinkedIn.

 


Updated 15 April, 2015

Radio Show on H-4 EAD/Legal Immigration Reform Status

 

 



Updated 27 April, 2015

The Lawsuit Against H-4 EAD Regulations

http://www.immigration.com/blogs/ead-aos/lawsuit-against-h-4-ead-regulations

 


Updated 11 May, 2015

H-4 EAD Frequently Asked Question from April 30, Community Conference Call 

H-4 EAD Expediting Possible?

H-4 EAD - Documents needed; name issues; processing times, etc.

H-4 EAD - Converting from H-1 to H-4 EAD - good idea or not?

H-4 EAD filing while H-1 extension is pending

 


Updated  02 June, 2015

H-4 EAD Frequently Asked Question from May 28, Community Conference Call

H-4 EAD filing based upon I-140

Filing I-765 while the I-539 is pending

Can I travel while my H-4 EAD is pending?


Updated  10 Nov, 2016

FAQs about how to ensure there are no gaps in a spouse’s ability to work when converting from another work status (such as H-1) to H-4 EAD.

 

 


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