H4 EAD: Eligibility and Qualifications

An H-1B visa allows a foreign individual to work for a company in the United States. The H-4 Visa is allows dependents of the H-1B visa holder to accompany her to the United States. Beginning in 2015, the H-4 began allowing Dependent spouses to apply for work authorization (EAD).

The objective of this program is to support the attraction and retention of talented foreign workers to the United States. It facilitates the ability of dependents to work and support themselves and their families.

The H-4 is only available to H-4 visa holders who are dependents of H-1B visa holders who are applying or approved to received a green card (lawful permanent residency) in the United States. In this way, it serves the purpose of attracting and retaining talent while seeking to minimize the effect on US workers of having foreign workers and their dependent spouses to undertake work in the United States.

In this article, we discuss the various requirements for the dependent spouse of an H-1B visa holder to receive work authorization.

How does the H-4 EAD Work?

First, an H-4 visa holding dependent spouse of an H-1B visa holder must file a Form I-765 with the USCIS. This is the request for work authorization.
To be eligible to apply for work authorization, the H-1B visa holding spouse must meet one of the following:
• Be approved for permanent residency status (a Green Card), which means having an approved form I-140.
• Hold an H-1B visa that has been extended pursuant to the AC21 Act, which allows the H-1B holder to remain in the United States beyond the 6 year limit if the H-1B holder has filed a form I-140 for permanent residency and the application is pending.

How to Apply for H-4 EAD Status?

As previously stated, the dependent spouse of the H-1B visa holder must file form I-765, which is the Application for Employment Authorization.

The USCIS will review and must approve this document before the H-4 visa holder is granted authorization to work. If approved, the USCIS will receive an employment authorization document (Form I-766). At that point, the H-4 visa holder may begin working.

The steps for applying for work authorization are as follows:

• Complete form I-765. The form includes specific instructions in PDF format for filling out the form.
• Make certain to sign the documents and include the required filing fee.
• You must also provide supporting documentation sufficient to satisfy USCIS requirements.

If you are filing Form I-485 for adjustment of status to Lawful Permanent Resident, you can do this at the same time as filing the I-765. The eligibility criteria for the I-485 must be indicated as (c)(9). You must also include the Form I-485 filing fee instead of the Form I-765 fee (you do not have to pay both).

What Supporting Documentation is Required

Supporting Documentation should include:
• Personal Photos - You must submit 2 passport photos of yourself.
• Establishing your H-4 Status - You should include a copy of your approved for I-797 demonstrating your approval for Form I-539 (which is the application to extend/change one’s non-immigrant status), if applicable. You should also include a copy of your form I-94, which shows your Arrival/Departure Record. It should indicate your admission as a H-4 immigrant and an approved extension of stay (if applicable).
• Personal Identification - You should include a copy of your government-issued ID that includes a photo. This might include:
⁃ A copy of the Form I-766 EAD (if available);
⁃ Passport with Biometric page;
⁃ Birth Certificate with Photo Identification;
⁃ Visa issued through a foreign consulate office; or
⁃ National Identity verification with photo.

• Establishing Relationship to H-1B Non-Immigrant Visa Holder - This generally means providing a copy of a valid marriage certificate.

• Eligibility to Apply for the EAD - Remember, you will need to demonstrate that you are the dependent of an H-1B visa holder who has either been approved for a green card or has the application pending.
⁃ Providing an approved Form I-140 Immigrant Petition for Alien Worker by submitting the approval notice (Form I-797) for the Form I-140.
⁃ If the I-140 has not been approved, you can provide evidence that the H-1B visa holder has granted and extension of state under AC21, section 106(a) or (b). You can do this by submitting the H-1B visa holders’ passport, Form I-94 (Arrival/Departure Record), Form I-797 (Approval Form for Form I-129, Petition for Non-Immigrant Worker). Also, you must include information to establish the basis for the H-1B visa holder’s extension of stay.

What Supporting Documentation is Required For the H-1B Visa Holder?

There are basically two options for supporting that the H-1B visa holder qualifies for the dependent spouse to request EAD status:

• Permanent Labor Certification - It is sufficient to demonstrate that the H-1B visa holder is the subject of a Permanent Labor Certification application that was filed 365 days or more before start of the extension period authorized under AC21(a) or (b). You may need to submit correspondence with the DOL demonstrating certification of the Permanent Labor Certification Application. You could also submit a copy of the Form I-797 Notice of Receipt for Form I-140 (which demonstrate the the Form I-140 was filed within 180 days of the DOL certification. This is required when the application is submitted more than 180 days after the certification takes place.

• Pending Form I-140 - If the form I-140 is still pending, you should submit evidence that the Form I-140 was filed at least 365 days before the extension of stay authorized under AC21, sections 106(a) or (b) would begin. This can be done by simply supplying the Form I-797 (Notice of Receipt) or Form I-140.

If you do not have access to the above-referenced evidence related to the H-1B visa holder, you can petition for the USCIS to consider secondary evidence in support of your H-4 authorization. This might include an approved I-129 (Extension of Stay Request) for the H-1B visa holder or receipt of the approved Form I-140.

Can You Submit Multiple Forms Together?

You may submit the Form I-765 without other applications if you are in H-4 status and do not need a change or extension.

You may submit the Form I-765 with Form I539 if you need to change or extend your H-4 status.

You may submit the Form I-765 with Form I-129 seeking H-1B status for your spouse and Form I-539 for yourself.

You may file Form I-765 with Form I-539, Application to Extend/Change Nonimmigrant Status, or with both Form I-539 and the Form I-129, Petition for a Nonimmigrant Worker, filed for the H-1B principal nonimmigrant. The USCIS will not make a decision on your Form I-765 until after it has adjudicated the Form I-539 and determined whether the H-1B holder or applicant spouse eligible for the underlying H-4 nonimmigrant status,

Validity of Employment Authorization

You will not be authorized to work until USCIS approves your Form I-765. Once your employment authorization is approved, the expiration date on your EAD should be the same date as the expiration date on your most recent Form I-94 indicating your H-4 nonimmigrant status. You are only authorized to work through the expiration date on your EAD. If you still will be eligible for work authorization after that date, you should file for a renewal EAD by submitting another Form I-765. You cannot file for a renewal EAD more than 180 days before your original EAD expires.

What is the Status of the H-4 EAD Program?

The status of the H4 EAD is uncertain. It has come under significant scrutiny by organizations promoting the protection of US jobs for US citizens. Particularly, a group known as “Save Jobs USA” filed a legal action against the Department of Homeland Security (DHS) challenging the H-4 EAD program.

The legal action is still pending at the time of this article on December 14th, 2017, the DHS published an agenda item aimed at removing work authorizations for H-4 visa holders.

Currently, there is an H-4 Employee (EAD) Protection Bill in the US House of Representatives. In the meantime, individuals can still apply for H-4 EAD status under the original laws.