Employment Authorization Document (EAD) for H4 visa holders allows H4 visa dependent spouses of H1B nonimmigrants to legally work in the United States. Eligible H4 visa holders may apply for H4 visa EAD if they want to work or start business in the US.
Effective May 26, 2015, the H4 EAD rule was implemented with the intention of retaining highly skilled foreign workers and decreasing the interruption to US businesses that results from H1B workers choosing not to stay in the US. The Department of Homeland Security (DHS) expects this new rule to reduce economic burdens and personal stresses among H1B nonimmigrants and their families while transitioning to lawful permanent resident status.
The policy implications will greatly affect many immigrant families because the H4 EAD rule allows spouses (who often have valuable skills to contribute ) to work outside the home, allowing for a better transition to American society and can help ease economic burdens common among families with only one working parent. USCIS estimates that it could receive as many as 179,000 applications for employment authorization in the first year of the new rule, and 55,000 annually in subsequent years.
To apply for H4 visa EAD, eligible H4 visa holders must file Form I-765, Application for Employment Authorization.
Eligibility for H4 Visa EAD
Applicants are eligible to apply for H4 visa EAD if the H1B visa holder:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has been granted H1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). AC21 permits H1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H1B status.
NoteH4 EAD applications based on the first criteria listed above are relatively straightforward and can usually be accomplished without an attorney. That being said, if you are applying for H4 EAD based on AC2, the documentation can get a little complicated because USCIS does not specifically track H1B petitions that are approved based on AC21. Thus, the evidence you need to submit to establish eligibility based on AC21 can vary.
H4 visa for EAD applicants must provide evidence of one of the above-mentioned requirements to prove their eligibility for EAD. They can do so by submitting:
- A copy of the H1B nonimmigrant’s Form I-797 approval notice for Form I-140; OR
- A copy of the H1B nonimmigrant’s passports, prior Forms I-94, and current and prior forms I-797 for Form I-129; and
- Evidence of the H1B immigrant’s extension of stay, based on:
- Filing of a Permanent Labor Certification Application. Submit a copy of the H1B nonimmigrant’s Permanent Labor Certification Application filed at least 365 days prior to the expiration of the six-year limitation of stay; OR
- Pending Form I-140. Submit a copy of the Form I-797 for I-140 filed at least 365 days prior to the expiration of the six-year limitation of stay.
H4 visa holders who do not have evidence for any of the above-mentioned may be able to request that USCIS consider secondary evidence in support of their EAD application. Such evidence may include:
- Receipt number of the H-1B nonimmigrant’s most current Form I-129 extension of stay request, or
- Receipt number of the H-1B nonimmigrant’s approved Form I-140 petition.
Notes on H4 Visa EAD
There are a few important notes to remember about the H4 EAD.
- Not all H4 visa holders are eligible for H4 EAD. The H4 visa holder’s spouse (H1B visa holder) must fit into one of the two criteria listed above.
- There are multiple advantages to the H4 visa EAD:
- There is no particular wage requirement and no Labor Condition Application (LCA) requirement.
- The H4 EAD holder can work part time or full time without worrying about whether it will affect his/her status.
- The H4 EAD holder does not have to work in a specialty occupation; H4 visa EAD holders may work in any field for any employer.
- No job offer is required to apply for H4 visa EAD.
- Unlike the H1B visa, there is no “cap” on H4 visa EADs, and the applicant can apply for H4 EAD at any time once his/her spouse meets the above listed criteria.
H1B to H4 with Concurrent H4 EAD Application
If you are currently on H1B status and contemplating changing status to H4 (if your spouse also holds H1B visa status), you may concurrently file the H4 I-539 form along with Form I-765 although the H4 EAD will not be approved until the I-539 H4 EAD application itself is approved.