On Feb 24, 2015, Unites States Citizenship & Immigration Services (USCIS) approved employment authorization for H4 visa holders, allowing them to legally work in the United States with an H4 visa EAD.
Eligible individuals for an H4 EAD include H4 dependent spouses of H1B employees who have been in the US for more than six years on H1B status or who have begun the Green Card process in the US.
A stakeholder teleconference was held on February 26, 2015 regarding new regulatory changes that extend employment authorization to H4 dependent spouses. These H4 visa EAD FAQs provide answers to your H4 EAD questions in response to this teleconference.
Who May Apply for H4 EAD
Q. Is employment authorization for H4 nonimmigrant limited to just his/her H1B spouse's time under AC21?
A. Employment authorization expiration date generally will match H4 nonimmigrant status expiration date. USCIS may grant employment authorization for the maximum time allowed.
Q. Is this a one-time opportunity?
A. No, as long as the H4 dependent spouse remains eligible for employment authorization, he/she may file to renew the employment authorization and receive a new EAD.
Q. Does a H4 dependent spouse need to be in the US to apply for employment authorization based on his/her H4 status?
A. Yes, H4 dependent spouse must be in the US to apply for H4 EAD. An individual outside of the US cannot hold H4 visa status.
Q. Is H4 dependent spouse eligible for employment authorization if USCIS revoked his H1B spouse's Form I-140 petition?
A. No, H4 dependent spouse of H1B visa holder, whose Form I-140 has been revoked by the USCIS will not be eligible for H4 EAD. In case, if H1B spouse receives an extension of stay under AC21, the H4 dependent spouse will qualify for employment authorization.
Q. If H1B spouse has an approved Form I-140 which was filed by a previous employer, will the H4 dependent spouse still be eligible for H4 visa EAD?
A. USCIS does not care about who filed Form I-140. To be eligible for an H4 EAD, it is enough that the H1B spouse of H4 dependent spouse is a beneficiary of an approved Form I-140.
Q. What will happens to H4 dependent spouse's employment authorization if USCIS revokes his/her H1B spouse's approved Form I-140?
A. USCIS will revoke the employment authorization of H4 dependent spouse, if his/her H1B spouse no longer has an approved Form I-140 or is no longer eligible for H1B status under AC21.
Q. Can the H4 visa EAD holder work for an employer and also own their own business at the same time?
A. Yes, H4 visa EAD holder can both work for an employer and do business at the same time because employment authorization is unrestricted.
Q. Can an H4 Visa EAD holder employ other people?
A. As employment authorization is unrestricted, the H4 EAD holder can hire individuals as employees.
Applying for Employment Authorization
Q. Can H4 dependent spouse concurrently file applications/petitions for H1B extension, H4 extension, and employment authorization concurrently?
Â A. Yes. all these petitions can be filed together.
- Form I-765, Application for Employment Authorization
- Form I-539, Application to Extend/Change Nonimmigrant Status
- Form I-129, Petition for Nonimmigrant Worker
Q. Is it possible to concurrently file a new H1B petition, a new H4 change of status application & an application for EAD?
A. Yes, but under the following conditions-
- H1B spouse must have an approved Form I-140 or must have requested for an extension of stay under AC21.
- Both the spouse & dependent spouse must be eligible for H1B and H4 nonimmigrant status respective.
USCIS will first determine eligibility of H1B spouse then H4 Spouse and will then start processing for EAD.
Q. Form I-765 application based on your H4 nonimmigrant status is paper-based or electronic?
A. If applying for employment authorization is based on H4 nonimmigrant status the the applicant is must file a paper Form as USCIS will not accept the electronic Form.Â H4 EAD applicants may only file for EAD for H4 electronically.
Q. How long does H4 EAD processing take? Is their any Premium processing H4 visa EAD application?
A. EAD processing typically takes 90 days.
No, there is no premium processing but in certain emergency situations, it may be possible to accelerate a pending EAD application. Accelerations are usually limited.
Q. If Form I-539 for H4 status is still pending on May 26, 2015, should one file Form I-765? Will USCIS match Form I-765 to the pending Form I-539?
A. USCIS encourages not to file Form I-765 if Form I-539 is still pending on May 26, 2015. This is because, USCIS cannot guarantee to match the Forms because it expects filings for EAD in high volume.
Adjudication of Application for EAD (Form I-765)
Q. Will USCIS cut off applications after receiving a limited number of Form I-765?
A. No. There is no cap on Forms I-765.
Q. Will USCIS make any changes in Form I-140 immigrant petition process based on the new regulatory changes?
A. No, USCIS does not anticipate any changes in the adjudication of Form I-140 immigrant petitions.
Q. Will an F1 nonimmigrant who possesses Optional Practical Training (OPT) employment authorization be continuously employed, if he/she files a petition for H4 nonimmigrant status concurrently with an EAD?
A. No, because the F1 nonimmigrant is allowed to work only as long as the OPT authorization remains valid. EAD will not extend employment authorization under OPT.
Q. If the Form I-539 is adjudicated before Form I-765, will USCIS backdate the beginning date on the EAD to the start of H4 status?Â
A. No, USCIS will not backdate the validity date of the EAD to the date of H4 status. The validity beginning date on EAD will be the date on which USCIS adjudicated the Form I-765 or the date on which the applicant acquires qualifying H4 status, whichever is later. But, EAD will expire when the H4 nonimmigrant status expires.
Waiting for H4 Visa EAD (Employment Authorization)
Q. Can applicant travel while Form I-765 is pending?
A. Yes, with valid H4 nonimmigrant status, applicant may travel outside the US. But, this may cause possible delays in their case, if USCIS need to reschedule appointment at an Application Support Center.
It is recommended not to travel while Form I-765 is pending because:
- USCIS may ask for additional information or
- may issue a Notice of Intent to Deny (NOID) with an opportunity to respond.
If applicant do not respond to it on time, USCIS may deny the case as abandoned.
Additionally, if Form I-765 concurrently with Form I-539, USCIS will deny Form I-539 as abandoned if applicant travel abroad. In this case, USCIS would also deny Form I-765.
Q. How long does H4 EAD processing take?
A. Although, it varies from case to case, EAD processing typically takes 90 days.
In case, the applicant files Form I-765 concurrently with a Form I-129 and Form I-539, the EAD processing will not begin until USCIS determines the applicant eligibility for H1B status.
Processing may also be delayed if the applicant is asked for additional evidence or USCIS issues an RFE or NOID.
Frequently Asked Questions After Receiving EAD
Q. Can an H4 EAD be used to enter and exit the country?
A. No. An H4 visa EAD is not an entry document. A valid passport and H4 nonimmigrant visa (unless you are visa exempt) or other travel document must be used to return to the US.
In addition to these H4 visa EAD frequently asked questions, you can learn more about EAD for H4 Visa Holders by checking out the active forum: EAD for H4 Visa.