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DHS News : Certain H4 Visa Holder EAD Eligibility Criteria – 2014 Rule

[Updated : May 20th , 2015 – updated info ]

There has been quite a bit of buzz around this on and off for the past couple years or more allowing H4 Visa holders to work in United States.  There were rules proposed and tracked in the federal register regarding this for some time…Earlier in 2014 , Whitehouse announced regarding employment opportunities for certain H4 visa holders as they published a set of measures to strengthen en entrepreneurship in US, but no details were mentioned  at that time.  Today, Department of Homeland Security ( DHS) announced an official press release outlining some details on H4 Visa holder Employment details. Below is the summary of the press release.

H4 Visa Holders EAD Eligibility 2014 Rules

Firstly, NOT all H4 visa holders are eligible for the Employment Authorization Document ( EAD).  H4 Visa holders have to fall under one of the below category to be eligible for EAD.

  • Have an approved I-140.    or ( The I-140 refers to the Immigrant Petition for Alien work to get permanent residence – aka Green Card – in United states  )
  • Have been granted extension to authorized stay beyond 6 years under AC21 Act. ( The American Competitiveness in the Twenty-first Century Act of 2000 (AC21)  allows H1B visa holders seeking lawful permanent residence ( Green Card) to work and stay in United States beyond the six year limit, if their PERM/Green Card Processing is pending )

The above rule is Final and has been passed. USCIS will accept applications for H4 visa EAD from May 26, 2015

Also, some stats on the impact about the rule.

  • This new proposed rule will enable about 97,000 H4 visa holders to be immediately eligible for employment authorization ( EAD)
  • Also, about 30,000 H4 visa holders would be eligible annually going forward to avail this EAD facility.

The complete details of the proposed rule will be published in the Federal Register soon. The above information is on a high level and does not list all the details.

Why DHS is giving EAD for H4 Visa holders  ?

DHS explains in the federal register that the justification to allow H4 visa holders is to reduce the negative economic effects that H1B households face with one income during the lengthy waiting time of adjustment of status to legal permanent residence. Also, this rule will help H1B holders not to quit and leave their Green Card/ Permanent residence application processing because their H4 spouse cannot work.  Also, it explains that the impact of this rule would only have a negligible increase in domestic work force, which should not raise any eyebrows that jobs are reduced for locals.

I think, it is a really good move by the US Govt. to help H4 Visa Holders situation in United States. I wish this rule could apply to all the H4 visa holders, without any restrictions. It could be very challenging for anyone to work after 6 years break…

What happens Next ? When will the H4 Visa EAD becomes a law ? 2014 Year end ?

Update : This rule has passed the final state and approved by DHS/ USCIS on Feb 24, 2015 and it become effective from May 26, 2015. Eligible H4 visa holders can apply for EAD from May 26, 2015.

The complete details will be published in Federal register. It will go through a 60 day period for public comments. Based on the comments, the rules can be modified.  The US Homeland Security officials said that they expect to issue final regulations by end of this year.  Again, this is still a proposed rule, so you need to wait until it becomes an official rule and law, stay tuned for updates.

Official USCIS Steps and Process Published:

Update : On May 20th, 2015 USCIS Updated and published the guidance and how to apply, including the most commonly asked FAQs.

Check out the key highlights and important points of the publication from USCIS at Summary of Guide to Apply EAD for H4 Holders, FAQs by USCIS 

If you are filing H4 EAD, we’ve built a tracker for your case to help you and everyone get overall insights from others. It is fully anonymous and has analytics. Please add your case to  H4 Visa EAD Tracker 

You may also read : DHS – H4 Visa EAD Rule passed – How to Apply for EAD ? Process 
What are your thoughts ?

References:

   

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198 Comments

  1. Hi,
    Is the bottomline that, if you do not plan to apply for a green card, then there is no way an H-4 can get to work until her stay in the US?

    Reply
  2. Can anyone please throw some light on the H4- EAD visa???? Also is it necessary to stay in US for two years and after that only a person hoding H-4 visa can apply for H-4 EAD

    Regards
    Pooja

    Reply
  3. Hii, my fiance got his H1 visa and soon we will get married , after that we will apply for H-4 visa for myself. I am a law graduate currently working in India. Can you please suggest what options available for me if I want to work in U.S.

    Regards
    Pooja

    Reply
    • You have to come to US and study at LAW school or some equivalent, just based on Indian Law school education it is almost impossible to get a Law related job.

      Reply
  4. My husband’s employer recently started his green card process in February (2015). it is being processed in the EB2 category. My name is not on his gc application, will i still be able to apply for H4 EAD once his I-140 comes through?

    Reply
  5. Hi,

    I have a question.
    I am on H4 right now. The H1B will expire on August. I will then again have to renew my H4 status with the renewed H1B. So, if I file for EAD now and if it gets approved, should I again file for another one after the renewed H4. Or I can just renew the existing EAD? Will i include similar charges too? (I mean fees). FYI- I fall under approved I 40 category.
    Thank you !

    Reply
  6. I don’t have I-129 do we need?
    I have only valid I-797 with I-94, same for my H4 wife, and we have copy of I-140 approved. is it good without I-129?

    2 Photographs required H4 to EAD? nowhere mentioned @USCIS but I read some post on immigrations forums only.

    Reply
  7. Hi, I have a small doubt regarding my eligibility of h4 ead. My husband comes in the category of 7th year extension under AC21 rule. His PERM got approved recently and waiting for his employer to file i140. In this case, am I eligible to apply for ead? Confused!! Pls help.. Thanks

    Reply
  8. Hello, I am on my H1B and planning to get my H4 EAD. Does anyone know what is the estimated lag time between getting my H4 to EAD? I believe in H1B case I will first be changing my status to H4 and then will get H4 EAD. The moment my H4 gets approved, my H1B becomes invalid and I cannot work until i get my EAD. So I am trying to figure out how much that lag time will be, Can anyone help?

    Reply
    • Madhvi,
      Typically the change of status can take anywhere upto 90 days and again for EAD another 90 days. So, it would be typically anywhere around 180 days or 6 months. It may be done earlier or may take even more time, you need to account for the load that USCIS will have at this peak time…

      Reply
  9. Hi,
    Per the news by USCIS, Employment Authorization for Certain H-4 Dependent Spouses, (uscis.gov/working-united-states/temporary-workers/employment-authorization-certain-h-4-dependent-spouses) i am getting ready to applying for EAD by collecting all supporting doc and so

    My husband applied for green card and his I-140 has been approved however his current visa status is H1B

    I was just going thru the form I-765 (www.uscis.gov/sites/default/files/files/form/i-765.pdf) and there is a question 16 in the form where i am confused and struck,

    Question 16, Go to the “Who May File Form I-765?” section of the instructions. In the space below, place the letter and number of the eligibility category you selected from the instructions. (For example, (a)(8), (c)(17)(iii), etc.).

    i have read the instruction for filling the form I-765 but could not find under which category H1B visa holder fall under

    Can someone help me in getting the answer for QUESTION NO. 16 (uscis.gov/sites/default/files/files/form/i-765instr.pdf) under which category H1B visa holders come under for H4 dependents

    Reply
  10. I recently applied for COS from H1b to H4. Can I apply for H4 EAD while H4 application is still in process? (In other words, can I apply for H4 EAD with I797C receipt notice?).

    Reply
  11. hi
    After receiving H4 EAD,I am planning to work for a employer as a software engineer and simultaneously start up my own business.am I elligible to do both?

    Reply
  12. If a non green card holder is already working for a firm in the USA, when his term expires, can he get the EAD authomatically if the firm applies for him through the company’s lawyer. How long will the process take? Thank you.

    Reply
  13. Do you need to complete 6 years to qualify under h4 ead. My spouse has got her i-140 approved, but she didnt complete her 6 years..pls advice

    Reply
    • It says above “H4 Visa holders have to fall under ONE OF THE BELOW category “. So, h4-holder should have I-140 or extension.

      Reply
  14. Hi, My wife has 3y with H1B visa, I think sponsor didn’t fill any other format, just for another 3y extension, it is a School District. I am H4 with a Master Degree, did I have any chance to get this permit for work?

    Reply
  15. My wife is on H4 Visa and went to India in March 1st week. She planned to return to USA in May 2nd week and apply for H4 EAD on May 26th. But, She has to stay in India until July. So, can she apply for H4 EAD while she is in India?

    Reply
  16. Hi,

    If anyone could please answer the following question:

    Currently I am on H4 visa and planning to convert to F1, do you think it is a good idea? My husband has his GC process going on but by the time we get I-140 would be like september-october ? Or may be later too.

    Can I convert to f1 first and then if everything works out, I can apply for H4-EAD?

    Thanks,
    neha

    Reply
  17. Hello, I need some clarification on this matter. Regarding the number of applications specified by USCIS -1,79,600 for this year and 55,000 from next year onwards, is it like a quota?
    any idea on what basis can selections be made when the applications are made 26th May’15 onwards??

    Reply
    • I also have another doubt regarding the form I-765 ,question 16 –
      “Who May File Form I-765?” category ..The categories are elaborate but Im not able to find which category will I come under ,My husband has EB2 category , He’s been using H1B visa since 2011.
      Can someone please tell me which category will I have to choose once his I-140 form is approved??

      Reply
    • I am on F1 Visa. I am assuming I can work while COS from F1-OPT to H4. Bur Can I work from H4 to H4 EAD COS ?

      Which is better option from below?
      1. Should I convert from F1-H4 first and then H4-H4 EAD now?
      Or
      2. Work on F1-OPT as of now and wait for 1 year or so and then convert from F1-H4 first and then H4-H4 EAD ?

      Reply
  18. I’ve completed 4 years and 6 months on my current H1b visa and have recently received my H1 extension. The new H1B validity duration includes the additional 1 year post completion of 6 years on H1B per AC21 Act as my labor was filed more than a year in advance of my H1B getting exhausted (6 years completion on H1b) and my labor status was in progress (it still is in progress and there is no decision yet). The additional one year extension was requested in I-129 form per AC21 Act. I’ve following question in this regard.

    Though I wouldn’t complete 6 years on my H1B when USCIS starts accepting the H4 EAD application on May 26, 2015, would my wife be eligible for H4 EAD at that point as I’ve got an additional one year on my H1B per AC21 Act?

    Reply
  19. Ryan- Thank your for patience in answering lot of question. I hope you spare sometime to provide some inputs to the below questions.
    My wife is eligible for H-4 EAD as per new rule. We already decided to file H1 B for this year. Assuming it goes through lottery and gets approved with Effective date of 1 October, a) will she be automatically changed from H-4 to H1 ?
    B) If so, this will cause her EAD to be invalid ,right ?
    C) If no for question a, can she continue to work on H-4 EAD from Oct 1st?
    Please advise. I know I am jumping the gun, but just anxious whether to continue H1 B process in case EAD rule gets into a court issue.

    Reply
  20. Hello,

    I am H1-B visa holder wife of H1-B I-140 approved spouse. I want to convert my H1 into H4 in order to get EAD. In the change of status application form I 539, can you specify the exact date when you want your H4 to start? Would that go in the cover letter? Thank you!!

    Reply
  21. Hi…My wife’s H1B (from H4) got denied recently..Would this impact her EAD chances now once my i140 gets approved?

    Reply
  22. Hi I have a question. My husband had a I 140 approved from his previous employer after which he moved to a different company and they are about to file his GC again also my husband has completed his 7 + years of stay in this country. So, now am I eligible for EAD with his previous I 140 approval and 7 + years of stay or should I wait untill he gets his I 140 approved from the current employer? Some answers and clarity is versy much appreciated.

    Reply
  23. Hi Ryan,

    if I am currently on F1 and want to apply for EAD on May 26, should I apply for change of status to H4 right away or wait for something (say the rule is put on hold)?

    Between the time my H4 approval is in process, should I take all mandatory credits / quarter to maintain F1 status? I am asking this since I want to take lower number of credits / quarter on H4. I might even drop the course altogether.

    Reply
  24. For instance my situation, I have approved I-140 with my employer and I applied H4 EAD for my wife, If I get layed off and my employer cancels my I 140, can my wife still hold the EAD status and work or her H4 EAD will be cancelled ?

    Reply
    • My correct question is below

      For instance my situation, I have approved I-140 with my employer and I applied H4 EAD for my wife, If I get layed off and my employer cancels my I 140, can my wife still hold the EAD status and work or her H4 EAD will be cancelled ? and if get my H1B transferred to another employer

      Reply
  25. My question is once I get h4 ead and my spouse who is on h1 valid till sep 2017 . If he changes his employer and 140 has been revoked
    will my ead will be still valid?

    Reply
      • I want more clarification on this like once I get ead for 3 yrs .how would uscis know my status that my spouse has changed employer(h1 b transfer) .
        Once 140 is approved will he reviews the case again until the new one applied.
        Will I get any notification that my ead is not valid any more.
        I just want to know how that will be processed.

        Reply
  26. My brother-in-law’s family is there from the past two years, he is on H1B and she is on H4 and she an engineer. Can she work on H4 now?

    Reply
    • Andrew,
      There are some eligibility criteria, he should have started his GC and completed I140 stage. There is more information on these in the discussions below.

      -Karthik

      Reply
  27. I am currently on h1 and starting the GC process for me. After I get I-140 form approved, my spouse who is on h4 can start working on H4 EAD as per new rule. Can i quit my job and transfer my spouse on my I-140 so that he can continue working? does it become necessary for me also to remain in working status to have his job active?

    Reply
  28. This is ramya.I have a query on new EAD rule. Can u clarify ?
    My husband’s green card Perm has been pending with DOL for 1+ year.We are now in our 5th year of H1.And my husband’s employer has requested for H1 extension.As his Perm is more than 1 year, his employer has requested for 3 years of H1B extension . That is 2 years (for h1 max out) plus 1 year under AC21 act.Now if he gets his extension for 3 years, shall I apply for EAD as he is getting H1B extension with reference to AC21 act.Or i need to wait until 6 years to be exhausted and apply in the 7th year.Please provide your comments.

    Reply
    • Ramya,
      In cases where an H-1B worker asks for a petition extension for the remainder of his first 6 years plus the 7th year (because PERM will be pending for 365 days), yes, the H-4 spouse can apply for an EAD. However, USCIS has not determined yet how long the EAD will be valid for – whether only for one year (to match the one year extension the H-1B holder qualifies for), or until the H-1B worker’s status expires (up to three years).
      –Ryan

      Reply
  29. Hi? everyone! I’m H4 holder, my husband has H1b and he currently works. I have 2 questions
    1) Form I-765 requires SSN (H4 holders can not get SSN)
    2) If my husband lose his job, what will happen with me as H4 holders?

    Reply
    • Mary,
      1. You don’t need an SSN to file for work authorization, but if you already have one (from your own prior work authorization), you should put it down.
      2. While your H-4 EAD likely will not be physically taken from you or even cancelled in the system, it will become invalid once you are no longer in H-4 status. If your spouse loses H-1B status, your H-4 status is also effectively taken from you.
      –Ryan

      Reply
  30. Can some one explain are they trying to restrict people applying for H1 by this statement?

    vii. H-4 Dependent Spouses Not Selected in the H-1B Lottery

    Less than 20 commenters requested a carve-out for H-4 dependent spouses who had filed an H-1B petition but who were not selected in the H-1B computer-generated random selection process (“H-1B lottery”). [18] Although DHS appreciates the frustration that may result from not being selected in the H-1B lottery, the Department declines to extend eligibility for employment authorization to these H-4 dependent spouses. This rule is not a substitute for the H-1B program and is not intended to circumvent the H-1B lottery. A primary purpose of this rule is to help U.S. businesses retain the H-1B nonimmigrants for whom they have already filed an employment-based immigrant petition. Expanding the rule to help nonimmigrants in other situations does not directly support this goal.

    Reply
    • It seems to me that this comment addresses the situation where there is an H-1B holder (let’s say “the husband”) married to an H-4 holder (“the wife”). If the wife applies for her own H-1B this year but it doesn’t get accepted in the H-1B lottery, these public commenters requested that she get special H-4 work authorization. The government decided against this. She would only be able to get H-4 work authorization if she otherwise qualifies because of the husband’s approved I-140.
      –Ryan

      Reply
    • Please check this link out http://www.rnlawgroup.com/news/462-false-information-h-4-if-their-spouses-i-140-is-approved-or-in-7th-year-h-1b-whose-h-1b-got-rejected-in-lottery-cannot-apply-for-ead

      Reply
  31. Can any body explain the meaning of this ? its from federal register
    https://www.federalregister.gov/articles/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses#h-32

    vii. H-4 Dependent Spouses Not Selected in the H-1B Lottery

    Less than 20 commenters requested a carve-out for H-4 dependent spouses who had filed an H-1B petition but who were not selected in the H-1B computer-generated random selection process (“H-1B lottery”). [18] Although DHS appreciates the frustration that may result from not being selected in the H-1B lottery, the Department declines to extend eligibility for employment authorization to these H-4 dependent spouses. This rule is not a substitute for the H-1B program and is not intended to circumvent the H-1B lottery. A primary purpose of this rule is to help U.S. businesses retain the H-1B nonimmigrants for whom they have already filed an employment-based immigrant petition. Expanding the rule to help nonimmigrants in other situations does not directly support this goal.

    Reply
    • Kumar, the H-4 spouse will get work authorization, but he or she needs to maintain an underlying status, so yes, the H-1B spouse should keep up the H-1B and the H-4 spouse needs to remain in valid H-4 status until they get their green cards, or at least until they get advance parole when they apply for adjustment of status. These issues can be very complex, and it can be very helpful to consult an immigration attorney.
      –Ryan

      Reply
  32. So my question is – H4 is dependent on H1B. That means if and when H1B expires the H4 also expires. Does that fact still remain? I don’t know of any wise employer who would hire my spouse betting on my H1B status and validity. LOL!

    Reply
    • Jadukijamphi,
      I believe that a lot of employers would be willing to hire your H-4 spouse. Unlike your H-1B, they don’t have to pay for your spouse’s work authorization, they don’t have to follow the complex, high-stakes rules that go along with having an H-1B employee, and they can adjust the terms of her employment as they see fit without needing to ask the government for permission for each change. Sure, there’s a chance your spouse might lose her work authorization if you somehow lost yours first, but only people on the path to a green card are benefiting from the new H-4 work authorization, and that’s a pretty promising group.
      –Ryan

      Reply
    • As I know EAD valid till your H1 valid.. Everything remains same. Just authorization for work, I afraid if any sponsorship is required or not? If required bet me this is flop show. I also afraid about more and more slow employment based GC. USCIS improves something but breaking many things. I like if GC process moves quicker, I want to setup my own small business instead of working with stupid Consulting firms.

      Reply
      • We are all hoping this new H-4 work authorization processing will go smoothly! They have 3 months to get staff in place and trained to adjudicate the applications. Fortunately, there’s no sponsorship component. Your spouse doesn’t need a job offer to apply. And once she has H-4 work authorization, she will be able to do any job she wants, including setting up her own small business, while you will still be stuck with the rigid rules of the H-1B program!
        –Ryan

        Reply
  33. My PERM is pending beyond 365 days and I extended my H1-B for 1 year based on pending PERM application. So, does my spouse become eligible to apply EAD?

    Reply
    • The H-4 EAD rule will be implemented on May 26, 2015, as announced in a press release issued by the U.S. Citizenship and Immigration Services (USCIS) website earlier today. The USCIS will reject any such applications filed prior to May 26th. To qualify, your H1B spouse must either (a) have an approved I-140, or (b) have extended H1B status beyond six years based on a PERM labor certification or I-140 pending for at least 365 days. Note that if the I-140 was approved but then withdrawn by the employer, the H-4 spouse may still qualify if the H1B worker has been approved for an extension of status beyond six years. Source- Murthy(dot)k0m

      Reply
  34. What kind of jobs are H4 EAD workers eligible for. My understanding is that they can only apply for STEM (Mainly software) jobs. Am I right?

    Reply
    • It will apply for all the eligible H4’s not just the STEM ones.

      Read the statement from USCIS below:
      Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

      Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

      Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

      Reply
      • Already I crossed 8years on H1b , my stupid consultant applied for GC for her own benefits at the end of H1B (5th year and approved I140 at end of 6th year and filed under EB3 due to my BCA from India), still lots of struggling and my date is not still priority date. now some rules should be set like after some years or after 6th years automatically get GC etc to all employments based categories. Many countries have rules like these.

        Reply
  35. I have Objection on this statement , why this lengthy waiting time only for “INDIANS” Citizens, USCIS issue Employment based GC to worst countries citizens as “Current” like Pakistanis, afghani, Iraqi many other countries are worst and those citizens are illiterate not deserve H1B visa but still those are current.. change that system you all SET and no need H4 to EAD later on… :
    “H1B households face with one income during the lengthy waiting time of adjustment of status to legal permanent residence”

    Reply
    • Hi Prashant, currently each country has the same share out of all the available slots per year(7%), irrespective of the population. Since India and China have the highest number of applicants, the queue is created for India and China until the visa is available. If you want to jump the queue, you always have Eb5.

      Reply
      • unfair with Indians only man.. whatever you explains , Chinese I seen they doesn’t matter because they already have nice progress. this means only Indians are visa eater all around the world… no man.. I can see 100 of Chinese public around me and very few Indians (I don’t say DESIS, I hate this word DESI, I love to say Indian only..).

        Reply
    • Do you there is something called google whi can answer your question rather than asking here and sounding foolish.

      Reply
      • H4 EAD no need to allow, my concern issue EAD and GC who are waiting since long.. Tight all rules specially for South Indians. Just Invite Punjabis only balley balley

        Reply
  36. Is there a provision if H4 is filing for H1 this year & in case EAD Comes before H1’s result then are they still entitled for getting EAD or does it change because they already filed for H1 this year 2015. Also what would happen in a situation that H1 is approved this year for them in Oct 15 & EAD comes after that. Can anyone please throw light on this scenario?

    Reply
    • The federal rulemakers considered that many H-4 children are teens and young adults who may want to work, but they decided to extend work authorization only to spouses, which is consistent with other classes of visas such as L-1 and E-2.
      –Ryan

      Reply
  37. Good News…:) H4 EAD – final rule is approved by OMB with change on 02/13/15. Now it has to be published by USCIS. We are at the last leg. This will happen any time…
    http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201502-1615-004

    Reply

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