H4 Visa EAD FAQs – H1B Audit, Transfer, LCA, Required to Work for Renewal

H4 Visa EAD FAQs – H1B Audit, Transfer, LCA, Required to Work for Renewal

In Immigration| Visas by Kumar48 Comments

by Emily Neumann, Attorney at Law

Can you believe it, Emily has answered over 40 FAQs around H4 EAD as part of the series so far?  This is part 4 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 third part of H4 Visa EAD FAQs – Start Company, Work at Multiple Employers, Apply in India ? written by Emily, who is a highly qualified immigration attorney practicing only immigration law for over 10 years. As always, we Thank Emily for her time and effort to help our readers.

A labor application for Green Card has been filed for my husband in May 2014, which has been audited. The extension for the H1B premium (with the 6 yrs. of H1B set to expire in May 2015) has been filed recently along with my H-4. Assuming it goes through, will I be eligible to apply in May.

A: Yes, you should be eligible once your husband enters his 7th year of H-1B in May 2015. At that point, he will have been granted H-1B status under section 106(a) of AC-21. This section of AC-21 allows for H-1B extensions in one-year increments for those who have a labor certification application pending for 365 days or more.

For H4 visa holder, will there be any negative impact (say, while renewing EAD card) if the H4 EAD holder doesn’t work after getting the EAD card?

 A: Absolutely none. One of the benefits of the H4 EAD versus an H1B or an OPT is that you are not required to work when you have an H-4 EAD. You can choose to work or not to work and still maintain your H-4 status and still be able to renew the EAD card in the future.

Is there a limited quota for H4 EAD?  If so, how many?

 A: Thankfully, No. Unlike the quota for obtaining an H1B Visa or for obtaining a green card, there are no limits to the number of individuals who can receive an H-4 EAD.

My H-4 expires soon and my H4 extension process will begin in May which will take 2 months for approval. Since my husband (has been in US for 7 years) has I-140 approved the next extension will be for 3 years. Should I wait and apply for EAD after the new H4 status or should I apply now?  What is the best option to apply immediately or after approval of new H-4?

A: Assuming that when you file your H-4 extension in May, you are expecting a three year extension based on your husband’s approved I-140, then you could potentially file your H-4 extension and EAD applications together and get a three year EAD. This is assuming that your current H4 is valid to at least May 26th. If it expires before then, you can file your H-4 extension prior to its expiration, and then file the EAD application on May 26th while the H4 application remains pending and still get the same result. I do not see any reason to wait for the H-4 approval before you file the EAD application.

Can H4 visa holder travel outside after applying for EAD but the application is still in process and EAD is not received ? We are planning to travel to India in June. So Can I apply for EAD in May and then travel?  Would there be any impact or limitations for my travel when I applied for EAD on H4 ?

 A: We know for sure that the H4 EAD applicant must be in the U.S. in H4 status in order to apply for the EAD (or be filing an application to change to H-4 status concurrently). It is not yet clear whether travel after the filing of the EAD application will have any impact on the pending application.

I am on H1B with I-140 approved.  Earlier, I was on L1B and my wife had L2-EAD. The L2 EAD is now expired.  Do I have to renew the L2 EAD and change the status to H4 EAD or H4 EAD is a brand new thing.  If H4 EAD is brand new process, do I have to take any action on the expired L2 EAD?

 A: Since the L-2 EAD has already expired, the H-4 EAD will be a new process. It doesn’t really make any difference either way. No action needs to be taken with the expired EAD. Just note that the EAD application does ask whether you have ever been granted employment authorization in the past. So, you wife will want to provide the details of her previous L-2 EAD in that section of the application and submit a copy of the card, if available.

I have H1B that is approved beyond 6 year period, but my 6 year stay has not yet completed. Does my H4 spouse eligible for EAD?

 A: This is not completely clear based on the wording at this point. It does not specifically state that the H-1B holder must have completed 6 years if there is no approved I-140 petition yet. Current policy is to allow an individual to combine pre- and post-sixth year extension requests into one application. In that way, a person could have been “granted” an extension under 106(a) of AC21 prior to actually reaching the six year limit. I think we have to wait for guidance on this issue.

Should the H4 visa EAD employment be in same location as in spouse’s H1B LCA?

 A: There is no technical requirement regarding the location of work for an H-4 spouse holding an EAD. As long as the marriage is bona fide, there should not be an issue with separate work locations.

Should H-4 holder EAD be renewed when primary H1B holder is switching employers while on EAD? Can the EAD be applied directly during the transfer process?

A: In general, an EAD renewal can only be filed up to 120 days in advance. If the H-1B holder is switching jobs, we often file an H-4 extension at the same time, just for purposes of maintaining the same validity period for all family members (i.e. it is helpful for everyone to have the same end date). Unfortunately, I doubt that an EAD renewal could also be filed prior to the 120 day period. I think you may end up with varying end dates between the H-1B, H-4, and EAD in many job change situations. Just be sure to keep track of all the dates and know when you can file. It is possible that some guidance may be forthcoming on this issue so it is something to keep an eye on.

If H1B Holder is on AC21 Extension after 6 years, and his/her I-140 is revoked. Then will their spouse will still be eligible for H4 EAD, under the option 2 of H-4 EAD rule?

A: It may be too early to say for sure, but I would expect that the spouse would lose the EAD eligibility if the I-140 has been revoked. In any immigration application, eligibility must be established at the time of filing. The H-1B holder may have been eligible for the extension at the time of the H-1B filing, but since the H-4 EAD has not yet been filed, the eligibility cannot be established at the time of filing the H-4 EAD.

Thanks again to Emily for answering to another set of questions raised by our readers. Immigration can be complex, if you need help with your H4 EAD application, please reach out to her by 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 ( 48 )

        1. administrator
          Saurabh

          Harch,

          You can be on unpaid leave. It is not required to formally resign. However, check w/ employer about their company policies around it.

  1. Nisha

    My L2 EAD is still valid but I moved to H4 in December. My I140 got approved last week, can I start working based on my old EAD even though it was approved on L2?

    1. Tarun Rohira

      Hi Nisha

      Im on h1b currently and my wife on h4

      She got picked up in h1b and should be having a valid working visa by october

      My concern that i have is

      If i apply for greencard right now
      Which may get me i-140 within one and half year or more

      Would my wife still be able to work on h1b or she needs to maintain h4 status due to my greencard

      1. administrator
        Saurabh

        Tarun Rohira,

        Your wife will have both options – move to her own H-1 status and work; or remain on H-4, get EAD after I-140 approval and then work.

          1. administrator
            Saurabh

            Tarun Rohira,

            She can be on her own H-1 and still be included as your dependent for green card purposes. That is allowed.

  2. Subha

    I’m on H1B and tried converting from H1B to L1A in 2014 but got denied. So, L2 and L2 EAD were denied as well. Now my I140 got approved so trying to submit H4 EAD but on I-765 Question#11, it’s asking for Denial notice. My employer does not share the denial notice.

    Can I just provide the L2 EAD receipt notice? Will I get an RFE?

    Thanks in advance.

    1. administrator
      Saurabh

      Subha,

      Question 11 is have you ever applied for employment authorization previously. This refers to another EAD application which was previously applied. As L-1A was denied, it doesn’t fall in this category.

      1. Subha

        Saurab – I’m applying for my spouse H4 EAD. I tried converting my H1B to L1A but was rejected and hence H4 to L2 conversion and L2 EAD was rejected as well. Now I’m applying for H4 EAD for my spouse and not sure how to answer Question :11 on I765 as L2 EAD for him was already denied once.

        My employer don’t share denial notices.

        1. administrator
          Saurabh

          Subha,

          In that case, mention about this case and submit L-1 and L-2 receipts that you have. As for reason, just mention that H-4 to L-2 COS was denied which in turn caused L-2 EAD denial.

  3. Narendra

    Hi Kumar,

    I have stamped H-1b and my wife has stamped H-4 in 2015.

    I will be travelling in May-Jun 2016.

    Now my wife is pregnant.

    What r the immigration complications in this case?

    Also what could be the medical expenses in US?

    How can I cover them in Insurance?

    Little bit worried.

    Kindly guide with your valuable suggestions.

    Regards
    Narendra

    1. administrator
      Kumar

      Narendra,
      There should be no immigration complications, if you have all your paperwork correct. As it has been over a year, just need to ensure the client letters, everything is correct. pregnancy should not be an issue.

  4. Vinodh

    Hi Saurabh,

    I have entered US on Mar 2011 with L1-B Visa and worked of an employer till Nov 2012. From Nov 17th, 2012 I am on H1-B Visa. In between, I only went to India only for 2 weeks and returned to US.
    Q1. How long do I have on my 6 year validity of my H1B Visa?
    Q2. My existing employer is planning to start PERM (GC) for me still. May be it could take end of April 2016 also to start. Is it beneficial for me if they start at that time?
    Q3. My wife is on her H1-B Visa and has validity till Oct 2018. She also has her I-140 approved by her previous employer and still active and valid. if Q2 option is not going be help me, when do you think I can start my H4-EAD Visa application. Can I prejudge the start date of my H4-EAD Visa now itself or no? Please give me some good directions. Thanks and expecting your prompt response.

    1. administrator
      Saurabh

      Vinodh,

      1. You are cap-exempted for 6 years until Nov 2018. However, your 6 year cap of H-1 and L-1 will be reached in 2017. You should calculate only the time spent inside US on H-1 and L-1 to get this.

      2. You can apply for H-1 extension beyond 6 year max as long as PERM has been pending for more than 365 days. You don’t seem to have much time left and this process should be started ASAP.

      3. You can apply for H-4 COS + EAD and provide a COS start date 6 months in advance.

      1. Vinodh

        Hi Saurabh,

        Thanks for your responses!

        So, will it be possible for me to apply for a cap-exempt H1B Visa after I go into H-4 COS + EAD and work for an employer?

        Also, is that I have to go to H4 Visa and quit my job and then apply for H1 B later and Green Card to start PERM if in case my existing employer fails to meet the PERM criteria? Please clarify this too. Thanks again in advance!

        1. administrator
          Saurabh

          Vinodh,

          Yes, you can work in H-4 EAD for sometime and then apply for COS to H-1 through a cap-exempt petition.

          Not sure I understood your other question. Your PERM process can be started and you can move to H-4 in parallel. Once your PERM and/or I-140 is approved, you can file cap-exempt H-1 to move back to H-1 status and get H-1 term beyond the mandated 6 years. Does that answer your other question?

    1. administrator
      Saurabh

      Krishnan,

      She can apply for H-4 COS along w/ EAD. If she wants to maximize her H-1 time, then she can give the start date as the next day after her H-1 end date.

  5. Ashish

    Hi,
    I have my I-140 approved, and H-1B Visa will expire in May2016. Also my Wife’s H4 visa will expire in May 2016.

    My company has applied for the H1-B and H4 extension this month , (that is in Feb – 2016). But Company will not file for H4 EAD

    I want to apply for H4 EAD. what are my options ?
    1. Should i wait for the H1-B and H4 Extension approval?
    2.Can i go ahead and apply for H4 EAD now?
    – If yes , will she get EAD validity till May 2016 or as per new approved H1-B/H4 extension validity?

    1. administrator
      Saurabh

      Ashish,

      1. Both is possible. It depends when she wants to start working. If soon, then file it now; else wait for H-4 extension.

      2. If she applies EAD now, it would be valid until May 2016. Advantage is that she can start work early, disadvantage is that there may be a break in work once her EAD expires in May 2016 and she waits for EAD renewal.

  6. PK

    I will be greatly obliged if you can answer this:
    How many days it take for an H4 EAD extension? I hear it goes under re-approval and then extension process.
    My current EAD is expiring on December 8th and I applied for renewal on November 3rd. The online status still shows your case has been received on November 3rd. I need to provide my employer a rough estimate of days/weeks/months it might take – they need to decide whether to wait that long or get a replacement.
    TIA
    PK

    1. administrator
      Kumar

      PK, It is hard to guess. It can take anywhere from 60 days to few months. Check the H4 EAD Tracker and look at the details of approved petitions to get some idea. You can also check USCIS site for details on processing times.

      1. Prabnit

        Few months back, I had asked a question about H4 EAD renewal timeline – just wanted to let people seeking this information know that my H4 EAD extension was approved in 75 days after they received my extension application. Probably this will give many an idea and patience while they wait for H4 EAD extension.

  7. Shree

    Hi,

    I have applied for H1B which has received an RFE and my company is yet to send the RFE documents.In the mean time, my husband has received his I-140 approved.We have decided to go for the H4 EAD but not sure how to go about it.

    1. Do we need to wait for the company to withdraw the H1 application before we can mail the H4 application? Do we need get any proof of H1 withdrawal?

    2.Can we send the H4 application documents along with a letter stating that we want to withdraw the H1?And the company can in parallel send a request to withdraw H1?

    3.In the I-797 form, do I need to mention my H1 application?

    Thanks a lot.

    1. administrator
      Saurabh

      Shree,
      My answers are based on assumption that you are you already inside US on H-4 and have filed H-1 w/ COS.

      1. H-4 EAD can be applied even w/o withdrawing H-1 application
      2. If the employer is willing to withdraw H-1, they should send the letter. You cannot withdraw H-1, only the employer can.
      3. No

  8. Vidhya

    Hi- My husband has an approved I140 with company A. He is moving to company B. They have applied for the H1B transfer through premium processing. He is currently with A for the 2 week notice timeframe and waiting for the receipt from USCIS on the transfer. Company A has confirmed that they will not revoke the I140. I am on H1B as well. Question is – if I want to quit my job – how soon can company B fie my H4 – will they have to wait for my husband’s H1B to be approved and how long does it take to get H4 approval?
    Thanks!

    1. administrator
      Saurabh

      Vidhya,
      If you want to get H-4 valid until B’s 797 (which is still pending), then you need to wait for B’s approval. Once it has been approved, COS can be filed from H-1 to H-4 using B’s petition and USCIS will approve it for same duration as B’s H-1.

  9. Niriksha

    I have valid H4 visa till sept 2016, so am i right in assuming that my EAD will be granted for a period till my H4 visa is valid ? and was wondering if i will need to pay filing fee again when i apply for extension of EAD.. is it the same amount of $380 everytime?

    1. administrator
      Saurabh

      EAD extension fees need to be paid everytime it is extended, and yes its $380.

      You would receive EAD valid until H-4 I-94 expiration date.

  10. Nisha

    I have a question regarding H4 EAD. I am on L2 EAD and I have approved I140, from novemeber onwards I will be on H4, can I still apply for H4 EAD or my spouse has to has the approved I140?

  11. Tarun Rohira

    Hi

    I wanted to understand this

    If i apply for my greencard today as Day 1
    on which day can I expect my wife to be able to work on H4

    I read the blog multiple times but it seems bit confusing to get a list of stages and how much time it takes on each stage.

  12. GC

    we applied for GC and perm got denied and this is my 8th year in USA. So as perm denied we appealed for it and may I know if my wife can apply H4 EAD under the new EAD rule?

  13. Ritu

    My Husband is on H1B and has an approved I140 with his previous employer. He changed jobs and his current employer will be tagging the I140 to them (whatever is the correct legal way to put it) in a month.

    I am on L1B which is valid until feb 2017. I also have H4 stamped and valid until 2018.

    Given, the above scenario – can i go ahead and file for EAD through H4 in May? Will i require a change of status once and if my H4EAD is approved? Any recommendations on if i should file for EAD now or wait until my husbands I140 moves to current employer.

    And what if my husband again switches job – and it means another couple of months to move his i140 to new employer? and also in this case my H4 will be tagged to his petition with current employer and not future – what happens then?

  14. Jessica

    I have a question. Please advise
    My husband just got approval for I-140 and we have been in us for 4 years. So my question is can i have working permit?

  15. Ram

    Let me be the first one to thank Emily, Kumar and the Team for this invaluable source of information.

    You folks having been extremely generous to a crowd that does not care to say thank you!

  16. Olcay

    My H1B started on 10.01.2013 and my wife has an H4 starting that date.

    We have recently filed the PERM application through employment and it is still in process.

    Is she eligible for H4 EAD under this rule?

  17. Risha

    We have applied for COS from H4 to F1. COS is still pending.

    1. If COS to F1 gets approved, will my H4 remains valid?
    2. Can I go out of country and come back on H4 visa or should I reapply COS from F1 to H4?
    3. If I go on OPT then can I apply COS from F1 to H4?
    4. Or really to sum it up, if I am on F1 and eligible for H4EAD then what is the best course of action?

    Thanks much in advance.

    Risha.

    1. administrator
      Kumar

      1. You will only have one status at a time in US. After COS, you will be on F1 status.
      2. You do not need to go out of country to move to H4. You can file for a COS from F1 to H4 as COS.
      3. You are not eligible for H4 EAD on F1. You need to first get H4 status by doing COS to avail the benefit, assuming your spouse has an approved I-140 or H1B extended beyond 6 years with PERM in process under AC21.

    2. swetha

      My Husband in US with H1B and he got recently transferred to other state( Yet to move), he got his LCA approved waiting for some receipt to receive.

      He is planning to apply H4 to our Son and me.

      with LCA approved can he apply H4 to us ?
      As his petition will be changing to the new location which gone take 3 months ( that was the update we got from his company ).

      Do we need to wait to until he gets his petition to apply for H4 or we can process with existing petition?

      Thanks for the help.
      Swetha

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