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.
The H-4 EAD regulations become effective May 26th, 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 26th 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).
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:
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.
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).
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:
Because of this:
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:
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 email@example.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!