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 If it is not withdrawn, then it should remain valid for your husband to use it to obtain an extension with a new employer and for you to obtain an EAD.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.