At long last, USCIS has issued final regulations that will allow H-4 dependent spouses of H-1B visa holders to apply for work authorization (also known as a work permit or employment authorization document). At this point USCIS has not yet issued an FAQ – further guidance is expected the end of April or beginning of May. Until that time, here are our own H-4 EAD FAQs based on our reading of the final rule.

1. When can I file for the H-4 EAD?

The H-4 EAD regulations become effective May 26^th, 2015; that is the first day USCIS will accept H-4 EAD applications. If you are not already in H-4 status and need to change status to H-4, you can file the change of status application now, and then file the I-765 application for employment authorization on May 26^th or later. Keep in mind that once the H-4 change of status application is approved, your status is H-4 and you cannot work until/unless you have the employment authorization document.

The regulations provide that you can file the H-4 EAD application up to six months in advance of the requested start date. This is very helpful as EAD processing times can be 90 or more days and the EAD must be approved in order to keep working – it’s not enough for the renewal to be filed and pending with USCIS.

The final regulations also say that you can file the H-4 EAD application concurrently with the H-1B petition, and/or with the I-539 application to extend H-4 status or application to change to H-4 status. However, keep in mind that the EAD will not be approved until the H-1B and the H-4 are approved (see # 4 below).

2. What are the requirements to be able to file for the H-4 EAD?

The H-4 EAD is not for all H-4 spouses. Rather, to be eligible for the H-4 EAD, you must meet one of the following requirements:

• The H-1B spouse must have an approved I-140 petition, or
• The H-1B spouse must have a post-sixth year H-1B extension based on a labor certification or I-140 that was filed at least 365 days before the end of the sixth year of H-1B status

Pay careful attention to this second point – the regulations say that the post-sixth year extension must be actually approved; it is not enough to just have filed the PERM labor certification or I-140 petition at least 365 days before the end of the sixth year.

3. How long will the EAD be valid for?

The H-4 EAD will be valid for the duration of the spouse’s H-1B petition. It will therefore be important to carefully time the H-1B and H-4 extensions to make sure that the H-4 spouse can obtain the renewed EAD before the expiration of the current one. As we mention above, it is not sufficient to just have the EAD in process with USCIS (like it is for an H-1B extension).

4. How long will it take for USCIS to process the H-4 EAD application?

Technically the regulations provide that USCIS has up to 90 days to make a decision on an EAD application. However, the H-4 EAD final regulations state that this 90 day clock does not start until:

• The H-1B petition is approved (if not already approved),
• The H-4 application is approved (if the dependent spouse is changing status to H-4 or extending the status), and
• USCIS has determined that the H-4 spouse is eligible for the EAD (see #2 above).

Because of this:

• It will be really important to file the H-1B extensions and H-4 extensions well in advance of the expiration, and
• It will also be important to file the I-765 EAD application as far in advance as possible (remember you can file the H-4 EADs up to six months in advance).

5. What documents do I need to apply for the H-4 EAD?

The specific documents required may vary according to the facts of your case. Therefore you must consult an immigration attorney before filing to make sure that each requirement is fully documented for your case. However, as a starting point, the following documents should be included:

• Documentation that the H-1B spouse maintains valid H-1B status:
  • Copy of I-797 approval notice with I-94 card
  • Copy of most recent three pay stubs
• Documentation that the H-4 spouse holds H-4 status:
  • Copy of I-797 approval notice and/or I-94 card
• Copy of marriage certificate with certified English translation if needed
• Documentation that the H-1B spouse meets one of the requirements listed in #2 above:
  • Copy of I-140 petition approval notice, or
  • Documentation that the labor certification or I-140 petition was filed at least 365 days before the end of the sixth year of H-1B status:
    • A calculation of the date the sixth year of H-1B status ends
    • A copy of the labor certification that shows the date filed; copy of the email confirming the date the labor certification was filed; copy of the I-140 receipt notice confirming filing date; or other documentation showing the date the labor certification or I-140 petition was filed.
  • If the spouse is currently in another nonimmigrant visa status and is concurrently applying for a change of status to H-4, they must also include documentation that they maintain valid status. This documentation will depend on which status they currently hold.

6. What is the H-4 EAD application fee?

The H-4 change of status or extension fee is $290. The I-765 filing fee is $380.

To request the H-4 legal fees or to initiate an H-4 EAD case, please contact our office at info@sumnerimmigration.com or at 804-396-3412. If you would like to subscribe to our email newsletter to receive further updates on the H-4 EAD process, please click here: www.sumnerimmigration.com and enter your email address at the bottom right of the page. Happy filing!