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 USCIS has given an opinion that they will NOT allow H-4 EAD if the supporting I-140 has been revoked.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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Comments

Hi Rajiv,

My H1B is active and due for renewal from Mar 2017. I have an approved I-140. Would like to apply for a concurrent filing for H4 EAD + H1B extension which I am planning to apply 6 months before H1B expires which is Sep/Oct 2016. I was hearing that the H4 EAD also gets approved in 2 weeks if its premium processing of H1B visa. But I was hearing that H4 EAD start date would be Mar 2017 (H1B Renewal date) in this case not from when H1B extension gets approved. Can you please recommend whats the best possible solution for the above. Thank you.

Naga

Naga, we had a full discussion of this issue in the last call: Recording of Free Community Conference Call (Every Other Thursday), 2016, August 11 https://shar.es/1ZRYeG

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Smita, H-4 EAD are not premium processed. We had a full discussion of this in our 11 August 2016 community conference. See, Recording of Free Community Conference Call (Every Other Thursday), 2016, August 11 https://shar.es/1ZRYeG

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

If you have received change of status to H-4, you do not need stamping to start working on your EAD.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Hello Attorney Rajiv,

I have H1B visa and my i-140 is in process thru PERM and it may come around May 2017 if everything goes well.
My wife is also working here on L1 and her 7 years tenure will be over by Sept 2017. Can she apply for H4 EAD in May 2017 as soon my I-140 comes ?
What is the process ? H4 application 1st and then EAD ?
How much do you charge for it and what are timelines ?
Regards
Mohit

Hi Rajiv,

My wife is currently working on H1B and her employer is looking to apply her green card. I would like to change her status to H4 EAD.
Can she work at the same place with H4 EAD and also have green application simultaneously ?

Thanks in advance!
Regards,
Rohit

Hi Mr. Rajiv Khanna,

Thank you for the answers. These are really helpful.

I have following question;
My wife has H1B (which expires in sept 2016, she also has applied for extension), she recently got H4 EAD approved on my i140.
In order to continue working on the same project, through same consulting company (her employer), what steps do we need to take care (considering she has approved EAD now)?

Appreciate your help.

Regards,
SK

Withdraw H-1. Present EAD to her employer so that her I-9 can be updated. That is it.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Hi Rajiv,

My Wife's H4 visa and EAD is expiring but she has a valid I94 till next year, Can I apply for her EAD extension based on I94 date or do I need to get the H4 petition extended?

Thank you,
Sumit

H-4 EAD can be extended based upon I-94 (approval from the USCIS). Visa is irrelevant.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Hi ,
I have my I-94 valid till October 31st,2016. My visa extension Along with spouse H4 is applied in regular processing and is pending with USCIS approval. I recently got my I-140 approved and eligible to apply H4 EAD for my spouse. Can I apply for H4 EAD when our visa extension are in progress or should I wait until extensions are approved. As regular extensions are taking more than 6 months now just wondering how can I get H4 EAD quicker.

You can apply even while the H-4 is pending. I am not sure the EAD will come any quicker, but you can try

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

My spouse's H4 EAD expires Nov 18, 2016. Can I file the H4 EAD extension after the expiry date of Nov 18 2016?
I am asking this because the H1b may not get approved by that date and I do not intend to file the H4 EAD along with the H1b extension - Thanks!

You can file any time, but she cannot work during the gap in EAD's. Also, mind her H-4 status, Joseph.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Hi Rajivji,
My husband has an approved I-140 with a valid I797A extension. I applied for H4 EAD and it is still in progress.
Now, I am travelling to India where I would need to go for H4 stamping.
Considering my H4 EAD is still in progress, is it advisable to wait untill it gets approved and then travel to India for stamping? Does pending H4 EAD will create any problems?

Manu thanks in advance.

Hi Rajiv,

I am currently working on H1 but my job terminates end of this month. I have an EAD through my wife's green card processing (EB1 category). Am I eligible to stay in the country even if I am not working beyond Oct or would I need to convert to H4 dependent visa?

Thanks,
Karthick

Hello,
Can we apply for a H4 EAD, if i switched the employers, and I140 is with the old employer, as my new employer has just started the process

Yes you can.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Hello,
My husband H1B and I H4 have a status until 2018 (accord my I94). I am living one year in US.
I am trying to have a EAD for me. He has a form I129 and Perm Labor currently, but I don't know if I can apply for EAD because I don't need to renew my status now, just after 2018.

can you help, please?

Best regards,

Aline

Aline, wait to see my write up on the new regulations.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

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