H4 Visa EAD FAQs by Immigration Attorney – Part 2 – I-140 Change Employers, L1B, CPT

In Immigration| Visas by Kumar33 Comments

by Emily Neumann, Attorney at Law

This is part 2 of our FAQ series of the H4 Visa EAD rule was passed by DHS with effective date of May 26, 2015. You can check out the first part of H4 EAD FAQs –F1 to H4 or H1 to H4 COS, I-140 Revoked, written by Emily, who is a highly qualified immigration attorney practicing only immigration law for over 10 years. Thanks a lot to Emily for her time and effort to help our readers.

I was in USA for 7 years and got my I140 approved in 2013. I moved back to India 1 year back due to some personal commitments. Will my spouse be eligible for the the EAD if I travel back to USA with same employer with whom my I140 was approved?

A: Yes, if your employer files a cap-exempt H-1B petition for you based on the approved I-140 and you and your spouse return to the US in H-1B and H-4 status, your spouse should be eligible for the EAD.

My husband got approved I-140 from company A, with which he is working as Full time employee. Unfortunately, his project is ending in March. So his last date is March 15th. If he takes opportunity with another company, will the I-140 approved from company A still holds good for me to eligible for H4 EAD. Am I still eligible for H4 EAD?

A: It will depend on whether company A withdraws the approved I-140. If it is not withdrawn, then it should remain valid for your husband to use it to obtain an extension with a new employer and for you to obtain an EAD.

My husband came to USA in 2008 and was on H1B till 2010( 1.5 years : September 2008 to April 2010). In 2010, he enrolled into a graduate school and was on F1 for more than a year( April 2010-january 2012). From 2012 till date, he is on H1B(January 2012-january 2015). His I-140 was approved from previous employer and his i-140 application with current employer is pending. His H1B is valid till February 2017(from the latest employer). So, am I eligible for the 6+ years criteria required for the eligibility fulfillment or does the period from 2008 to 2010 not count because my husband changed his status in between to F1? Could you please clarify the same?

A: Assuming that your husband did not spend one year outside the US after obtaining the first H-1B, then when he changed back to H-1B in January 2012, he was continuing the previous H-1B six year period. That means that the H-1B time from 2008 to 2010 counts plus 2012 to present. Since he has an approved I-140, it does not really matter though.

I have I-140 approved from company A. Next month I will be joining company B. Would my wife still be able to apply for EAD in this May?

A: It will depend on whether company A withdraws your approved I-140 petition. If it is not withdrawn, then it should remain valid for you to use it to obtain an extension with a new employer and for your wife to obtain an EAD.

Do we really need I140 approval copy to apply H4 EAD for my wife? Actually, my employer doesn’t want to provide my I140 approved copy. Is there any way to force employer? OR any alternate way?

A: Unfortunately, there is no way to force the employer to provide it since they are not required to do so by law. If you request it and they do not agree, your next option is to do a Freedom of Information Act Request (FOIA) with USCIS. You could also try filing the I-765 application without the copy and provide as much detail as possible to allow the adjudicating officer to try to locate the approval in their system. However, if they are not able to locate it, you may end up with an RFE asking for proof of the approved I-140 and that could delay the process.

My Wife is on F-1 Visa and currently doing CPT Intern. Is it possible for her to apply for H4 and I765 at same time. She will be done with her CPT Intern by end of May, don’t want to apply for H4 now because then she will have to drop out of CPT Intern.

A: Yes, she can apply for the change of status to H-4 plus the EAD at the same time. Note that the change of status to H-4 does not take effect until it is approved. So, she could actually file the H-4 change of status application now and continue in F-1 status until the H-4 is approved.

I didn’t understand the point 2 in the eligibility criteria “stay in the United States under AC21 beyond 6 years”. I was in L1B for 5 years, then I transfer my Visa to h1B and I have been on H1B for last 1.5 year, and my employer applied for GC in 2012 and it pending with USCIS since then (due to denial and appeal). So does my spouse eligible to work under this rule? Since I am in US beyond 6 years limit?

A: It sounds like your H-1B was approved with an extension beyond the six year limit since you mention that you were in L-1 status for 5 years and have been in H-1B status for 1.5 (5 + 1.5 = 6.5). So, that indicates that your employer likely submitted documentation of your I-140 appeal  to obtain an extension beyond the six year limit under AC21. It therefore appears that your spouse should be eligible, but I would recommend confirming the details of your latest H-1B with your employer and/or immigration attorney to be sure.

Also, read next article : H4 EAD FAQs – Start Company, Work with Multiple Employers, Apply from India

Do you have any more questions ?   I will review the new questions and we will continue the H4 Visa EAD FAQ series !!

Anything to add ? Share your questions or concerns…

Thanks again to Emily for kindly helping us answer the second set of questions and writing for us. Immigration can be complex, if you need help with your H4 EAD application, please reach out to her using her contact info , she is a highly qualified immigration attorney and can help you with your case !

————————————-About the Author————————————–

Emily Neumann practices business immigration law and is a partner in Reddy & Neumann, P.C. in Houston, TX. Neumann writes a blog on immigration law (immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news.

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Comments ( 33 )

  1. SG

    I have one question, please help me to understand. My I 140 is approved with Company A and I want to switch to Company B. Company B is also agreed to file Perm and I 140 but what somehow if Perm/I 140 is rejected/went for audit then can I switch back to Company A or not?

    Please let me know if you have any suggestions.

  2. Gaurav

    Hello
    I am H1b since July 2011. So my H1b will expire in July 2017 (6 years). My wife entered USA on F1 visa in 2009. She switched to H4 in 2011. Then she also got J1 for a year and then she got a hardship waiver (US born child). Currently she is outside USA and will be entering USA on H4 in October 2016. I have not applied for extension of H1b beyond 6 years yet. Neither I have got I140 filed yet. But because my wife was F1 earlier, will she be eligible for EAD application once she comes back in october 2016?

    1. administrator
      Saurabh

      Gaurav,

      She could have received OPT EAD if she had applied for it after graduation. Once she moved to H-4 and J-1, she lost that opportunity to apply for EAD.

        1. administrator
          Saurabh

          Gaurav,

          I am not 100% sure, but I think H-1 extension for 7th year needs to be approved first before applying for H-4 EAD.

  3. Ally

    I have been working on H1B for almost 4 years. My husband has an approved I-140 for a while now. If I move to H4 (due to unusual circumstances), and apply for EAD
    a. Will my time working on EAD (assuming I get EAD approved and a job associated with it later) count against my remaining time on H1B ?
    b. Can I go back to H1B later, if required ?
    c. Can I file for GC on H1B later, if I go back to it ever ?
    Thanks a lot for all the information sharing and helping out with queries.

  4. Sonu Yukte

    Hi there,
    I am on H1 currently and my wife has a approved H 4 EAD. She is currently working on H4 EAD. If I change my job would she have to stop working for sometime before my I 140 from a different employer gets approved ?

    Thanks a lot .

    1. administrator
      Saurabh

      Sonu Yukte,

      She can continue to work on her current H-4 EAD until its expiration date. No action needed if you change employers.

  5. yadav

    Hi
    my employer has filed for my PERM LC.
    once my PERM is approved can i file for i140 and h4 ead? or will i have to wait for i140 approval to file h4 ead?

    1. administrator
      Saurabh

      Yadav,

      H-4 EAD can be applied only after I-140 has been approved. There is option to apply I-140 in PP to get quicker result.

  6. Anurag Mehrotra

    Please help me with my question

    ** Will my spouse(H4) be eligible to apply for EAD if my I-140 is approved from old employer, and I switch jobs, Assume the new employer has not filed for the PERM or I-140 yet and the old employer has not revoked the previous I-140 petition.

    **Also, will the situation change if same H1B applicant changes job after spouse gets her H4-EAD?

    Scenario Explained again below in steps
    1. H1b holder get I140 from company A and H1 b holder changes company after that.

    2. Can I still apply for H4 EAD for my wife based on my previous I-140

    Note: Company A does not revokes I140,

  7. Jan

    Hi,
    My husband’s I-140 got approved a month back.His 6 years period in USA(2.5 years L1,3 Years of H1) is ending on April 4,2016.I was working with my L2-EAD when my husband was in L1 Visa.Then my vias status changed to H4.
    Now his Company has applied for the extension for his H1 and my H4 after i-140 approval.I got the receipt notice for I-539 two weeks back.
    Shall i apply for EAD(I-765) now when my H4 extension is in progress?
    Also We have plans to go to india for vacation this April 2016.
    Please advice.
    -Jan

  8. Roopa

    I and my Husband applied H1 B visa in 2015 and my Husband also applied GC . All are approved and he got I 140. But my H1 B got query and it maximum chances to approve. So now I had 2 visa’s H4 and H 1 . I can apply H4 EAD to work. So my question is can I delay my H1 visa?

    In future if I need I can amendment H1 visa?

    1. administrator
      Saurabh

      Roopa,
      If your husband has approved I-140, then you can apply for EAD. Once it gets approved, you can work on H-4 EAD.

      In case, your H-1 gets approved w/ COS, then your H-4 status will become invalid and you need to start working on H-1. To continue working on H-4, you should leave US and return on H-4 visa; or file COS from H-1 to H-4. You can do the reverse in future when moving from H-4 to H-1.

      In case, your H-1 gets denied, or approved w/o COS, then you can continue to work on H-4 EAD.

      PS: Just a suggestion, up to you whether to take it or ignore it – you need to polish your English skills.

  9. Joyce

    Hi,
    I’m currently on OPT which will expire at the end of Sep 2016. My husband is filling for I-140, not approved yet. If I apply for H-4 now, Can I continue working if H-4 approved before my OPT expires? What should I do to avoid the gap in employment? Thank you!

    1. administrator
      Saurabh

      Joyce,
      H-4 will be applied w/ COS. Once H-4 COS is approved, you need to stop working even if OPT is still valid. You can mention a start date in your COS application. If you want to work until OPT expiration date, then mention the correct date in your COS application.

  10. Baishali Tikader

    Hi, my question is, if i apply for COS from f1 to h4 and h4 EAD together while working on f1 OPT, can i continue working after h4 approval until i get the h4 EAD card? Assuming my OPT will not expire.

  11. Parul

    Hi,
    My Husband is working in Company A and has I-140 approved (PDate – Dev2012 Under EB2). I have got H4 EAD based on his status. Now he wants to change the employer with H1 Transfer and new GC process. What is the RISK of this for my H4 EAD. My EAD is valid upto 2017.

    1. Meenakshi

      Hi Parul,
      i am in the same boat now. I would like to know the impacts of changing the employer and what happens to EAD.

  12. VS

    Hi,
    I am on h4 visa and I have my i140 approved. I was on h1 before but had to come to h4. Am I eligible to apply for H4 EAD ?

    Thanks,

  13. Deivasi

    Hi,

    I was in L2 (working with L2 EAD) from Jul 2008 to oct 2009 for 16 months. Then I changed from L2 to H1B visa. Now I’m in H1b Visa for 5 years 8 months.

    My employer have applied for GC and the I140 is still in process. They would be applying for my H1b 2nd extension next month as my current visa is expiring by oct 2015.

    Will my spouse will eligible to apply for H4 EAD now ? or Do we have to wait till my h1b 2nd extension gets approved?

    Will my initial stay in L2 be counted towards the 6 year limit?

    Thank you

  14. MVR

    Hello there, Does H1 applicant I-140 needs to be active (in approved state i.e. not revoked by employer) even after getting H4 EAD? If employer revokes approved I-140 petition, does that impact on already issued H4 EAD? Your help is highly appreciated!! Thanks in advance!

    1. Meenakshi

      Hi MVR,

      Just wanted to get some insight of what if the previous employer with draw the i 140 petition. Could you please guide.

  15. KV

    Hi

    My I140 approved with previous employer A and I moved to employer B in feb this year and my old employer revoked I140 . New employer visa is valid for 3 yrs( which I got based upon I140 from employer A). But I will be completing 6 years this may in US . So will I still be eligible to get H4 ead for my wife. please advise

  16. Yamini

    Hi,

    My husband has an h1 – b visa and I have F1 visa and my OPT expires in July 2015. My husband’s I-140 arrived last month, will I be eligible for H4 EAD? If yes, then can I apply for H4 visa and EAD together? Or What will be the best time to apply for H4 & EAD so I don’t have a gap of unemployment.

  17. Kumar

    Hello, I applied my H1B last year(14) thro a consultant. My petition moved to RFE (August) and it got rejected by USC on Jan 06th. Now my consultant says it’s because the client got bankrupt and Hence my petition was rejected. Please help me understand – Whether Can I over appeal through another consultant after getting any Client Letter ? Is it too late ? Kindly reply quickly.

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