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.