H4 EAD eligibility: i140 is approved or H1B 7th year extension applied with PERM. H4 physically in US. Cannot be filed from India. Job offer not required.
H4 EAD Eligibility: Is i140 Approval Required?
While an approved i140 is required in order to apply for H4 EAD, if the existing spouse has an available and valid application through PERM or its seventh year extension with AC21 rule by USCIS, then there can be certain leniency regarding the need of having previously obtained I-140 approval – but one must still physically reside in America during such evaluation. Additionally, any revoked activities that may have occurred due to fraud, misrepresentation or errors cannot detract from a program’s eligibility; granting even those descended into their 6th year of employment access privileges under these relaxed provisions.
Though no job offer is practically necessary prior filing along with erasing visas like F1 & L1 while tabulating time spent within US against this ruling; all types of Employment Based (EB) categories are accepted here viz EB1/2/3 without questioning total aggregate innkeepering inside USA including outstationed rest / vacation breaks and not on other precedence states’ scholarships mandated inititations . On top it allows tourists to tentatively leave borders shortening beforehand registration dates which works simultaneously towards business star up commissions further simplifying authorization desires over common denominators irrespective single niche operations whereas fast PAC processing tactics stands ready when delayed beyond 365 + days period yet satisfying credential imune criteria before paying conveyance corresponding payment services sans overlooking state enacted AB5
H4 EAD USCIS Rules
As per the official USCIS rule for H4 wife or husband, you are eligible to work in the USA if H1B spouse can fulfill any one of these two criteria:
#1 H1B Spouse has I140 Approved OR
The approved i140 can be from any past or current H1B employer.
Just make sure that i-140 approval has not been revoked by USCIS for fraud, misrepresentation, or errors.
If the old employer has withdrawn the previous i140 but has not been revoked, you can still use it for filing the H4 EAD application.
The i140 category is not relevant for filing H4 EAD. All three employment-based i-140 categories EB1, EB2, and EB3 are eligible.
#2 H1B Has been Extended Beyond 6-Year Quota
You can file H4 EAD even if your H1B i140 is not approved yet using the AC21 rule by USCIS.
This is possible when H1B has already spent 6 years in the US but is waiting for PERM approval.
H1B can work beyond 6 years in the USA by filing 1-year extensions if
PERM is Pending for 365+ days or
PERM is Approved or
PERM Audit is Pending for more than 365 days or
i140 is pending after PERM approval
The pending or approved PERM allows you to file H1B extensions in the 7th, 8th, and further years.
The H1B spouse should have worked in the US for at least 6 years in the USA using an H1B visa.
The total time should be added including vacation time outside the USA. Do NOT add the time when the person was on any other visa like F1, L1, etc. in the USA either before H1B or between H1B times.
FAQ
Can I file H4 EAD from India?
You cannot file an H4 EAD application from India.
You should be physically present in the USA when filing the H4 EAD application.
Can I travel out of the US while H4 EAD is pending?
You can file an H4 EAD application and then travel outside the USA.
There is a chance of getting H4 EAD RFE if your travel but it can be managed by your family if they are in the US.
Can I file H4 EAD with Revoked I140?
You can file H4 EAD with revoked i140 as long as USCIS has not revoked it for fraud, misrepresentation, or errors.
Can I file H4EAD with Old Employer’s i140?
You can file an H4 EAD application with an old employer’s approved i140.
It does not matter if you have changed jobs using an H1B transfer after the i140 approval from a previous employer.
Can I file H4 EAD and i140 Concurrently?
You cannot file H4 and i140 concurrently.
Some attorneys do claim that H4 EAD and i140 can be filed concurrently but we do not know of a real-life case that has been filed.
Hence, we recommend waiting for i140 approval before filing the H4 EAD application.
The fastest option is to file i140 in premium and get approval within 15 days.
Is an H4 child Eligible for H4 EAD?
H4 dependent child is not eligible for H4 EAD work authorization.
Do I need a Job offer to apply for H4 EAD?
There is no job offer required for applying for H4 EAD card.
Is there any Quota for H4 EAD cards?
There is no quota for H4 EAD cards.
Anyone can apply and you will get an H4 EAD open work permit card if you are eligible.
Can I Open my Business or work from Home with H4 EAD card?
You can open a business or work from home with H4 EAD card.
Is H4 EAD affected by California AB5 Law?
California’s AB5 law is only asking companies to convert contractors to employees.
If an H4 EAD person is doing the work as a contractor and is doing it for multiple clients, then there should be no issue.
Can H4 EAD work on both W2 and 1099?
H4 EAD can work on both W2 and 1099.
You can do stock trading, work at McDonald’s, start a new business, hire Americans or H1B, or another H4 EAD/L2 EAD in the USA.
What is an H4 visa or H4 status?
An H-4 visa or H4 status is a non-immigrant visa/status category for dependents (spouse and children under 21 years of age) of H-1B visa holders (temporary workers in a specialty occupation). It allows them to accompany or join the H-1B visa holder in the US.
What is an H4 EAD?
An H-4 EAD (Employment Authorization Document) is a work permit for spouses of H-1B visa holders. It allows eligible H-4 dependents to work in the US while the H-1B visa holder is in valid status.
Who qualifies for an H4 EAD?
To be eligible for an H-4 EAD, an individual must meet the following criteria:
- Be the spouse of an H-1B nonimmigrant who is the principal beneficiary of an approved Form I-140 (immigrant petition for alien worker) ;
- Be in H-4 nonimmigrant status; and
- Not have any other work authorization in the US
How is my H4 affected by the Edakunni Settlement (January 2023)?
Under the Edakunni Settlement, USCIS has agreed to adjudicate your H4 and H4 EAD at the same time as the adjudication of the principal’s H-1B petition IF the H4 and H4 EAD applications were filed concurrently with the H-1B petition.
This settlement will not apply to you if the H4 and H4 EAD applications were filed separately or after the filing of the principal’s H-1B petition.
Can I remain in the US while my H4 application is pending?
Yes, you can remain in the US while your H-4 application is pending. However, you must maintain your current nonimmigrant status while your H-4 application is pending. If you have a valid H-1B spouse, your eligibility to remain in the US is generally tied to their H-1B status. If your H-1B spouse’s status is valid, you may continue to remain in the US while your H-4 application is pending. If your H-1B spouse’s status changes or becomes invalid, your eligibility to remain in the US will be affected.
Can I continue to work on H4 EAD if I file a renewal application for EAD timely?
If you file a timely renewal application for your H-4 EAD, you may be eligible for a period of work authorization while your renewal application is pending. This is called “automatic” extension of work authorization. However, the length of the automatic extension is only valid up to the expiration date of your current I-94. You must stop working the day of expiration of your current I-94.
Can I study while on H4 or while my H4 is pending?
Yes, you can study while on H-4 visa or while your H-4 visa is pending. H-4 dependents are permitted to study in the US, but they are not allowed to work unless they have a valid H-4 EAD. Studying while on H-4 visa does not impact your immigration status, as long as you maintain your H-4 status and comply with all requirements to maintain your H4 status.
Can I work for any employer with my H4 EAD?
With an H-4 EAD, you can work for any employer in the US in any job that is not prohibited by law. You are not restricted to working only for your H-1B spouse’s employer. However, you must ensure that you have a valid EAD during the entire period of your employment. Additionally, you must maintain your H-4 nonimmigrant status while working in the US.
Can I open a business/company with my H4 & H4 EAD?
Yes, you can open a business/company while on H-4 visa or with an H-4 EAD. However, opening a company does not change your immigration status from H-4 to an entrepreneur or business owner. As an H-4 dependent, you are still subject to the restrictions of H-4 status, including the prohibition on working unless you have a valid H-4 EAD. Additionally, you must comply with all relevant immigration laws and regulations, as well as state and federal laws related to starting and operating a business in the US.
Overstaying my H4 status, what could happen?
If you overstay your H-4 status, it could have serious consequences for your future immigration prospects in the US. Overstaying your visa means that you have stayed in the US longer than the period of time authorized by the US government. This could result in a bar from entering the US for a specified period of time, or could even make you ineligible for future immigration benefits.
Additionally, overstaying your H-4 visa could also impact your ability to adjust status to a different immigration category, such as permanent residence, in the future. It could also negatively affect any future applications for work authorization or other immigration benefits.
If you have overstayed your H-4 status, it is recommended to consult with an immigration attorney for guidance on your specific situation and available options. In some cases, it may be possible to regularize your status through a process such as a change of status or extension of stay, or through a waiver of inadmissibility. However, these options are subject to specific requirements and criteria, and the availability and outcome of these options will depend on your specific circumstances.
What could happen if I continue to work without a valid H4 EAD?
Working without a valid H-4 EAD is a violation of H-4 visa status and is considered unauthorized employment in the US. Engaging in unauthorized employment could result in serious consequences for your immigration status, including, but not limited to, denial of future immigration benefits, including work authorization, fines, and even removal (deportation) from the US.
