by Emily Neumann, Attorney at Law
As you know H4 Visa EAD rule was passed by DHS with effective date of May 26, 2015. There are many questions asked by our readers around the same, many of these are complex…Hence, I reached out to Emily, who is a highly qualified immigration attorney practicing only immigration law for over 10 years. She agreed to help our readers by writing a series of articles based on questions around H4 visa EAD rule. Thanks a lot to Emily for her generosity and time to help our readers.
Can some on F1 visa studying apply for COS to H4 and EAD for H4 Simultaneously ? How does it work ?
Yes, concurrent filing of a change of status to H-4 or an extension of H4 visa status can be done along with the I-765 application for Employment Authorization. The Federal Register Volume 80, Number 37 published on February 25, 2015 specified that the final rule does allow “H -4 dependent spouses under this rule to concurrently file an Application for Employment Authorization (Form I-765) with an Application to Extend/Change Non-immigrant Status (Form I-539).” The processing time for the I-539 is currently 2.5 to 6 months based on the latest USCIS processing time reports for the Vermont and California Service Centers. At the same time, USCIS takes about 3 months to process EAD applications. Since the EAD cannot be approved until the H4 status is approved, the EAD may be put on hold until the H-4 is approved. You may want to consider filing the change of status to H-4 first in order to avoid a potential delay in the EAD application.
Can someone working on OPT on F1 visa, apply for COS to H4 and then EAD for H4 simultaneously ? Can I continue to work on OPT when I apply for the COS and waiting for the EAD for H4 ?
Yes, the change of status(COS) from F1 to H-4 can be filed along with a new EAD application. Furthermore, as long as you are properly maintaining your F1 status, you can continue your F-1 and OPT until the change of status is approved. Depending on when the OPT expires and when the H-4 EAD is filed, it may be possible to continue working without interruption. If, however, the OPT expires before the new EAD card is issued, you will not be authorized to work during the gap period. Care should be taken to verify processing times and compare them to expiration dates before filing to hopefully avoid any gap in employment authorization.
Can someone on H1B visa apply for Change of Status (COS) to H4 and apply for EAD for H4 at the same time, if eligible ? If so, Can the H1B holder, who applied for COS to H4 continue to work, after they apply ?
Yes, concurrently filing of the Change of Status from H1B visa to H4 and the EAD application is allowed. The H4 will not take effect until the change of status is actually approved. Therefore, if the H-1B continues to be properly maintained, you can continue to work on the H-1B while you wait for the H-4 and EAD to be approved. By “properly maintained” I mean that you must continue working for your H1B visa sponsoring employer in the job that you were sponsored for at the salary indicated on the petition with no material changes in employment.
Would employer be able to sponsor a green card for a person who is on EAD, especially with this new H4 visa spouse EAD.
Yes, an employer could sponsor an H-4EAD holder for the green card by filing a PERM labor certification and I-140 petition on behalf of that person.
What will be validity of the EAD card given to H4 Visa holders ?
The final rule indicates that the EAD validity will match the H-4 validity period. This policy is meant to ensure that USCIS does not grant employment authorization to an H4 dependent spouse who is not eligible. Furthermore, it will also likely reduce the number of times that H-4 dependent spouses may need to request renewal of their employment authorization.
I had to change my Job after my I-140 was approved, but my previous employer revoked it after I left that company. Is my wife eligible to get EAD?
Unfortunately, without a valid I-140 approval, your wife will not be eligible for the EAD. You should work with your current employer to ensure that your new labor certification and I-140 are processed as quickly as possible.
I am on H4 visa and my spouse is on H1B visa. My spouse’s Green Card process is yet to start, but one of the employer has sponsored my GC for future employment. My I-140 is approved but I have never been on H1 before. Please advise if the H4- EAD rule benefits me in any way.
Unfortunately, you will not able to able take advantage of the H-4 EAD rule. If you were to change your status to H-1B, your spouse could change to H-4 and obtain an EAD. Otherwise, your spouse should work with his or her employer to start the green card process at the earliest.
I have an approved I-140 under EB2-NIW. Is my spouse eligible for EAD?
Yes, your spouse should be eligible. There is no restriction regarding what classification your I-140 petition is approved under.
Check out the Second part of the series : H4 Visa EAD FAQs by Immigration Attorney – Part 2 – I-140 Change Employers, L1B, CPT ! Any different questions ? Please leave a comment.
Thanks again to Emily for kindly helping us answer and writing for us. Immigration can be complex, if you need help with your H4 EAD application, please reach out to using 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.