H-4 EAD FAQs
On May 26, 2015, the government will begin accepting H-4 EAD applications for work authorization. Please see our earlier report for background and context for this opportunity which has been many years in the making.
The following FAQs are based on preliminary review of the final regulation and a USCIS Stakeholders Call held February 26, 2015. We will update these FAQs as more information becomes available. The USCIS announced that, closer to May 26, 2015, it will post FAQs to the USCIS website. In addition, the USCIS will be issuing an updated Form I-765 Application for EAD sometime prior to May 26, 2015.
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 Work Authorization under the final H-4 EAD rule?
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. The government related it may expand the program later.
When may eligible H-4 spouses apply?
The government will accept applications received on May 26, 2015 or after.
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. The government will first need to approve the I-539 change of status before it will adjudicate the H-4 EAD, however. Currently it is taking 4-10 months for the government to adjudicate I-539 change of status applications. After that time, the government will begin processing of the EAD application (which could take another 3 months).The government indicated in its 2/26/15 Stakeholders Call that it is possible that it may adjudicate I-539/H4 EAD application packages in a more reasonable total timeframe, but it is not possible to predict processing timeframes at this time. The government also confirmed in its 2/26/15 Stakeholders Call that it is not possible to file an I-539 and the EAD application by premium processing.
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.
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
- 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 should 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?
During the 2/26/15 Stakeholder Call, the USCIS indicated that 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 relates it will accord flexibility. It 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. The government indicated in the 2/26/15 Stakeholder Call that this may delay ultimate adjudication, however.
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 70-90 days to process. Be prepared for delays, however, given the anticipated high volume of applications. The processing of the EAD when filed with an application to change status to H-4 will not begin until after the H-4 status has been approved. At that time the 90 day clock will begin.
How may employers complete I-9 employment verification forms?
Employers may not complete I-9 employment verification forms without viewing original EAD cards if that is the basis of work authorization. A USCIS website screen shot of an approved EAD application will be insufficient.
What are the Filing Fees?
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?
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.
Will the USCIS be publishing FAQs?
Yes. The government indicated in the 2/26/15 Stakeholder Call that it will publish FAQs on its website as we approach the first date for filing the EAD application, May 26, 2015.
In addition, the USCIS will be issuing an updated Form I-765 Application for EAD sometime before May 26, 2015.
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.