H-4 EAD FAQs
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in these FAQs without first seeking advice from a qualified attorney.
Who is eligible for H-4 EAD Work Authorization?
There are only two types of H-4 spouses eligible for work authorization:
- Where the primary H-1B worker spouse is the beneficiary of an approved I-140 petition and a visa number to immigrate is not currently available; or
- Where the primary H-1B worker spouse has obtained a 7th year or more H-1B visa extension as permitted 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 (known as “AC21”).1
Which H-4 dependents are not eligible?
H-4 children and H-4 spouses of H-1B1s, H-2 or H-3 visa holders are not eligible under the rule at this time.
May applicants submit an I-539 change of status to H-4 along with an application for H-4 EAD at the same time?
Yes. These two applications may be filed at the same time. Please note that the time it takes to adjudicate the H-4 and the H-4 EAD is variable and can take several months. It is not possible to file the I-539 and H-4 EAD via premium processing, but they may be filed together with a premium processed H-1b (I-129) petition for the principal nonimmigrant H-1b holder. In this circumstance, the I-539 and H-4 EAD are not necessarily issued under the premium processing timeframe.
What is the fastest way to obtain H-4 status so that an EAD may be processed as soon as possible?
An H-1B holder’s spouse with evidence of the marriage and the H-1B status may apply outside the U.S. at a consulate to obtain an H-4 visa stamp in his or her passport. Depending on the specific immigration history of an applicant and on the particular consulate, this process can take a few weeks or more if there are delays. Once the H-4 is issued, the applicant must return to the U.S. to apply for the EAD after entry.
What type of documentary evidence needs to be submitted to support eligibility for the EAD?
The following is a snap shot of evidence to include in the application package:
- Evidence that the H-4 spouse is currently in H-4 status (such as Form I-797 approval notice; or a copy of the H-4 visa stamp with I-94 arrival record); and
- Evidence that the H-1B principal is currently in H-1B status (such as Form I-797 approval notice; or H-1B visa stamp with I-94 arrival record; and paystubs from employment): and
- Marriage certificate or other evidence of the spousal relationship (such would have been used to obtain H-4 status); and one of the following:
- Form I-797, I-140 Approval Notice showing the primary H-1B spouse is the beneficiary of an approved I-140; or
- Evidence showing the primary H-1B worker has received a 7thyear or more H-1B extension under AC21 Section 106. This could include:
- All previous H-1B visa stamps, Forms I-797 H-1B approval notices, Forms I-94 admission record; or
- Additional evidence such as paystubs from H-1B employment or affidavits with receipt numbers
- In addition, each H-4 EAD applicant will be required to submit 2 passport style photographs with the I-765 application, plus the government filing fee.
What type of Form I-797 I-140 approval notice is necessary?
Any category of I-140 immigrant visa petition approval, such as EB-1 employment based first preference, EB-2 employment based second preference and EB-3 employment based third preference will suffice. The I-140 approval can be for a prior or current employer, so long as it has not been withdrawn or revoked. Whether the H-1B worker has obtained an extension beyond the six year period is irrelevant if eligibility is based on an approved I-140 visa petition.
What if the I-140 employer has withdrawn the I-140 or it has been revoked by the USCIS?
If the I-140 has been withdrawn or revoked, then the H-4 applicant is not eligible for the EAD. It is not clear what happens if the I-140 is withdrawn or revoked AFTER the EAD has been issued.
What if the I-140 I-797 Notice of Approval is not available or there are other difficulties with availability of documentary evidence?
The USCIS might accept secondary evidence of an approved I-140 or underlying I-129 petition when primary evidence is not available. Such secondary evidence may include an attestation that lists information about the underlying Form I-129 or Form I-140 petition, “so that an adjudicator may be able to match the Form I-765 application with the underlying petition(s).” Information may include the I-797 petition, the beneficiary’s name and/or the petitioner’s name. If secondary evidence does not exist or cannot be obtained, an applicant may demonstrate this and submit two or more sworn affidavits by “non-parties” who have receipt numbers for the approved I-140 visa petition. This type of missing evidence may delay ultimate adjudication.
What does it mean to have a 7th year or more H-1B based on AC21 106(a) and (b)?
If the primary H-1B worker is a beneficiary of a PERM labor certification filed and pending for 365 days before the maximum six years of H-1B has expired, the employer may obtain an additional one year H-1B status for the employee under AC21.
How long will it take the government to process the EAD application?
EADs currently take several months to process and this timing is highly variable. Current information may be found here: https://egov.uscis.gov/processing-times/.
What are the Filing Fees?
$380 currently. Please note that filing fees can sometimes change so it’s best to consult the USCIS website.
For how long will an EAD be granted?
The EAD validity will match the H-4 status expiration date.
Is there a limit to the number of H-4 EADs the government will issue?
No so long as the individual continues to meet the eligibility criteria outlined above.
What will happen to the H-4’s EAD if the primary H-1B worker is laid off from H-1B employment?
At the time of filing and granting of the EAD, both the H-1B employee and H-4 spouse must be in valid status. The USCIS may address the question of what happens if the H-1B worker is laid off following issuance of the H-4 EAD in future FAQs on the USCIS website.
1Under sections 106(a) and (b) of AC21, an H–1B nonimmigrant who is the beneficiary of a permanent labor certification application or an employment-based immigrant petition that was filed at least 365 days prior to reaching the end of the sixth year of H–1B status may obtain H–1B status beyond the sixth year, in one year increments.