As the effective date for Employment Authorization for Certain H-4 Dependent Spouses final rule approaches, awaiting applicants may have some questions specific to filing for EAD. USCIS has compiled a list of FAQs regarding H-4 employment authorization, clarifying any uncertainties about EAD eligibility, application process, adjudication process, and post-authorization.
The top five Frequently Asked Questions about EAD for H-4 are listed below.
Q. Is this a one-time opportunity?
No, this is not a one-time opportunity. If you are a H-4 nonimmigrant who obtains employment authorization under 8 CFR 274a.12(c)(26), you may file to renew your employment authorization and receive a new EAD as long as you remain eligible for employment authorization as described in 8 CFR 214.2(h)(9)(iv).
Q. Do I need to be in the United States to apply for employment authorization based on my H-4 status?
Yes, you must be in the United States to apply for employment authorization. You must be in H-4 status to be eligible for employment authorization, and an individual outside of the United States cannot be in H-4 status.
Q. If I am granted H-4 employment authorization, can I work anywhere (including starting my own business)?
Yes. If you are granted employment authorization based on your H-4 status, your employment authorization is unrestricted. This means that your employment authorization is not limited to a specific employer. It also does not prohibit self-employment or starting a business.
Q. Can I file the following applications/petitions concurrently: A new H-1B petition, a new H-4 change of status application, and an application for employment authorization?
Yes, but this scenario is possible only if your H-1B spouse has an approved Form I-140 or is requesting an extension of stay under sections 106(a) and (b) of AC21. Your spouse’s employer can file Form I-129 for your H-1B spouse no more than six months before the date the employer needs your spouse to work.
Please note that under this scenario, we cannot adjudicate your Form I-765 until we make a determination about both your H-1B spouse’s eligibility for H-1B status under sections 106(a) and (b) of AC21 and your eligibility for H-4 nonimmigrant status.
In either of the above scenarios, USCIS will not begin the 90-day interim EAD clock until we make a decision on your spouse’s H-1B status and your H-4 status.
Q. What evidence should I, as an H-4 nonimmigrant, submit to demonstrate my eligibility for employment authorization?
When applying for employment authorization based on your H-4 nonimmigrant status, submit the following with your application to demonstrate eligibility:
- Evidence of your H-4 nonimmigrant status;
- Evidence of your qualifying spousal relationship with the H-1B principal nonimmigrant (such as a copy of your marriage certificate);
- Evidence of your spouse’s H-1B nonimmigrant status;
- Evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his or her six-year limitation of stay as an H-1B nonimmigrant.
- Evidence that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his or her six-year limitation of stay as an H-1B, and the Form I-140 remains pending.
If you cannot submit the evidence listed on the Basis for Work Authorization section, you must demonstrate your inability to submit such evidence and instead submit secondary evidence, such as an attestation that lists information about the underlying Form I-129 or Form I-140 petition.
To read the rest of the questions, visit H4 EAD FAQs.
Also remember that you must wait until May 26, 2015 to submit your application for employment authorization (Form I-765). Any applications requesting employment authorization before May 26 will be rejected and returned to you by USCIS, and you will have to re-submit your application.
After you submit your EAD application, track its status using our H4 EAD Tracker.