Historically, spouses of H1B visa holders were not allowed to work in the U.S.
The U.S. Citizenship and Immigration Services (USCIS) issued immediate family members an H4 visa, which only allows them to lawfully live in the U.S. with an H1B visa holder.
On February 24, 2015, it was announced by USCIS that this rule would change beginning May 26, 2015. The Department of Homeland Security (DHS) would start issuing Employment Authorization Documents (EAD) to eligible H4 visa holders. Holders of such an H4 visa EAD can now legally work or start a business in the U.S. as long as their spouse’s H1B visa is valid.
H4 EAD Eligibility
H4 visa holders can apply for an H4 visa EAD as long as their H1B spouse meets the necessary eligibility requirements.
These requirements are that their spouse:
- Is the principal beneficiary of an approved Form I-140 (Immigrant Petition for Alien Workers) which has not been revoked, OR has extended their H1B status beyond the initial 6 year period under rule AC-21.
- Has been granted H1B visa status which is still valid.
H4 Visa EAD Benefits
In addition to the ability to work once obtaining an EAD, there are a few other benefits to the EAD.
H4 visa holders who have an EAD can:
- Receive a social security number
- Have no restrictions on employment
- Have no minimum wage requirements
There are also no limits on the number of H4 EADs issued annually.
Some people debate applying for an H1B visa or an H4 visa. With the easier application process and benefits of the H4 visa, it is usually what people end up choosing.
H4 EAD Processing Time
For an H4 visa holder who wishes to start work right away, you may be wondering what the processing time for an EAD would be. Processing times vary by service center which means there is no exact time.
No two EAD cases are the same, but most EAD applicants will get their petition processed within 90 days of submitting their application.
You should note that you cannot apply for an EAD until you are already living within the U.S., so if you would like to work right away, you should submit your application right when you get settled into your new home.
H4 EAD Status & Latest News 2018
H4 EAD Lawsuit
After USCIS announced that H4 visa holders can apply for EAD, there was a large number of H4 visa holders who jumped at the opportunity to work. This caused a threat to the employment of U.S. citizens.
An organization called Save Jobs USA (Save Jobs) decided to file a lawsuit against the DHS. The lawsuit claimed the DHS did not have the authority to grant EADs to H4 visa holders and that the new rule did not protect U.S. workers. This lawsuit was filed on April 23, 2015. Save Jobs USA’s case was initially dismissed by the Federal District Court, but this decision has been taken on appeal.
H4 EAD: Trump
In the meantime, the Trump Administration has also been involved in the decisions regarding H4 visa EAD’s. Due to Trump Executive Order 13788 “Buy American, Hire American” (EO), the DHS has had to reconsider their position on the H4 visa EAD to align itself with the EO.
The Trump Administration has, on various occasions, requested a stay in the proceedings, meaning that the case should be held in abeyance, so that alignment with the executive order can be considered before the DHS can state its case further. On June 23, 2017, the appeals court granted a stay and asked Save Jobs and the DHS to file motions stating how they would like to further deal with the case.
On December 22, 2017, the DHS and Save Jobs filed motions in court. Importantly, the DHS asked that the lawsuit be held in abeyance, as they are in the process of implementing the removal of the H4 EAD. Save Jobs wanted the court process to continue as, according to them, implementing this will take years, and in the meantime, H4 visa EAD’s continue to be valid and issued. The court decided that the case should be held in abeyance and that DHS should keep the court updated on its progress on implementing the removal of H4 EAD’s.
The removal of H4 visa EAD has officially been included in the Spring 2018 Regulatory Agenda (set to be in June 2018) titled “Removing H4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”. What this agenda item basically said was that the DHS intends to amend the rule regarding H4 EAD’s and that they will possibly remove this EAD in line with the EO.
The public will have a chance to comment on the proposed rule during the notice period.
Until this new rule is officially published and implemented, there will be uncertainty on whether current H4 visa EAD holders will be able to continue working in the U.S. It will also be a good idea to have a backup plan ready. Until this rule is published, H4 visa holders can still apply for EAD.
For updates, continue checking this website.
H4 EAD Application
All you need to apply for the H4 EAD is to fill out the I-765 Application for Employment Authorization form. This form and all the required documents listed below must be submitted to the USCIS. Remember, you can only apply if you are eligible.
An application fee of $410 must be paid to the DHS before your application can be processed. Some people are exempted from paying this fee, however.
H4 EAD Documents Required
The following documents may be required to be submitted with your Form I-765 as supporting evidence:
- Marriage certificate (proving you are married to an H1B visa holder).
- A copy of your Form I-94 or Form I-797 (proving you H4 status).
- A copy of your previous EAD (if you have been issued with one).
- 2x passport photos (make sure they are in color).
- Form G-1145 (E-notification of Application Acceptance) if you want to be e-mailed or receive a text message once your application has been accepted.
- Proof of eligibility by providing a copy of your spouse’s Form I-94 or H1B nonimmigrant passport, prior Form I-94 and current Form I-797 for Form I-129.
- Copies of you and your spouse’s passports.
- Either your government issued ID (with photo) or your birth certificate (with photo) or your visa issued by a foreign consulate or your national ID (with photo).
Submitting form I-765
Your Form I-765 cannot be filed electronically and must be mailed, together with the required fees and supporting evidence to the relevant address.
Take note that you can file your Form I-539 with your Form I-765, but your Form I-765 will not be processed until your Form I-539 has been adjudicated. Take note further that your H4 status must also first be determined before the 90-day adjudication period for Form I-765 (filed together with Form I-539) starts.
Form I-765 can be filed for a renewal of your EAD. This can be done up to 120 days before your EAD’s expiration date.
You can track your H4 EAD with this tracker.