Nearly one year after its implementation, the rule authorizing certain spouses of H-1B visa holders to apply for employment authorization has already had immediate positive effect on hundreds of foreign national families. While seemingly never-ending visa wait lists have caught thousands of H-1B workers in legal limbo, most of them are at least able to retain employment authorization. Not so for their dependent H-4 spouses. Under the prior system, H-4 visa status did not grant employment authorization. The new regime changed this blanket prohibition and some H-4 spouses may now apply for employment authorization. While the advantages to spouses who are already in H-4 status are obvious, the more interesting question is whether there are any advantages to families where both spouses have H-1B status. As discussed below, this rule can also be used creatively to extend much needed job flexibility to families caught in the visa wait list.
Who is eligible to apply for H-4 EAD?
To be eligible to apply for a work permit under the new rule, a foreign national spouse must be admitted to the U.S. in H-4 visa status as the family dependent of an H-1B visa holder. The principal H-1B visa holder must also have either 1) I-140 immigrant petition filed and approved for him, or 2) H-1B status approved under either of the provisions of the American Competitiveness in the 21st Century Act (AC21), e.g. have H-1B status extended beyond the typical six years of maximum authorized validity.
What are the advantages of applying for this type of EAD?
Historically, spouses of H-1B visa holders were required to obtain their own H-1B (or any other employment authorized) visa status to work in the U.S. If both spouses are currently in H-1B status and one (or both) have pending permanent residence cases, one of the spouses could choose to switch to H-4 status as a family dependent and apply for EAD. Such a strategy may be highly beneficial for the following reasons:
- H-4 EAD is a lot cheaper than H-1B
- H-4 EAD may be authorized for up to three years, same as H-1B
- Unlike H-1B, H-4 EAD allows doing any type of work for any employer (or multiple employers)
- H-4 EAD may be a lot less risky to obtain than renewing one’s H-1B status, particularly for IT occupations
Are there any disadvantages in applying for H-4 EAD?
H-4 spouses remain eligible for employment authorization only as long as the principal husband or spouse remains in H-1B status and continues to meet eligibility requirements. If the principal spouse loses his or her H-1B status, for example due to layoffs or H-1B case denial, the H-4 spouse will be out of luck too. Where both spouses have H-1Bs with permanent residence cases, it is very important to evaluate which immigration case has a better chance of success before the other spouse switches to H-4 status. Another important thing to remember is that H-4 EAD must be kept current at all times. Unlike H-1B, employment authorization does not automatically continue upon EAD application extension filing. This is why EAD renewals must be submitted in a timely fashion to ensure there are no gaps in employment authorization.
How quickly could I get H-4 EAD?
H-4 spouses may file a work permit application with USCIS and the current processing time is approximately 90 days. H-1B (or other work visa type) holders must take an additional step in switching to H-4 status before they become eligible to apply for work permits. This can be done either by changing status in the U.S. or applying for an H-4 visa at a U.S. consulate abroad and then reentering in H-4 status. Which one is faster depends on the individual circumstances. For those applying to change status in the U.S., the good news is that USCIS allows concurrent filing of H-4 and EAD applications. USCIS must first approve the H-4 classification before reviewing the EAD application but they have indicated that they generally try to approve EAD applications either at the same time or soon after the H-4 is approved. In practice, however, the EAD processing clock starts only after the H-4 status conversion is approved and USCIS may still take as long as 90 days to complete the EAD application.
Could I use premium processing to expedite EAD issuance?
H-4 and EAD applications are not eligible for premium processing. However, if an H-4 case is filed together with the principal spouse’s H-1B extension case, as a courtesy, USCIS typically gives premium processing treatment to the H-4 application as well. They may choose to extend the same preferential treatment to the EAD application, however this is up to their discretion.
If I change from H-1B to H-4 but USCIS does not approve the EAD application right away, I will lose employment authorization for some time. I do not want my employer to fire me. What can I do?
Those who consider switching from H-1B to H-4 status and apply for EAD may risk a possible gap in employment authorization from the moment of the H-4 approval date, when they lose H-1B work eligibility, until the time when the EAD application is approved. This period could be as long as 90 days and possibly even longer.
If the principal spouse is up for H-1B extension, one possible solution is to file the H-1B, H-4 and EAD cases together, premium process the H-1B, and keep fingers crossed that USCIS would process all three components as the same time. There is no guarantee USCIS would do this, however, so a better solution is to strategically push the H-4 status start date to about 90-100 days after the anticipated H-4 case approval date. That way, H-4 status will not become effective until the future start date, even if the H-4 case is approved, and this will allow the H-1B visa holder to stay in H-1B status and continue working while waiting for EAD approval. The goal is to time the applications in such a way that USCIS approves the EAD before or at the same time the H-4 status kicks in so that the EAD start date would coincide with the H-4 status start date.