by Emily Neumann, Attorney at Law
This is part 3 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 second part of H4 EAD FAQs –Part 2 – I-140 Change Employers, L1B, CPT, 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.
Can a H4 visa holder with EAD open a business or start company ?
A: Yes, the EAD for H-4 holders is not restricted to any particular type of employment. It can be full-time, part-time, multiple employers, short-term multiple employers, independent contractor (i.e. 1099), self-employed business owner, employment through a staffing agency, paid, unpaid internship, or not working at all.
What will happen if in case my spouse, who is on H1B, loses his job? Being the H1B primary, will the H4 EAD be automatically invalidated?
A: I think the short answer is probably yes. In general, if an H-1B holder loses a job and falls out of status, the H-4 holder would also go out of status. It really will depend on the specific circumstances of the H-1B holder’s situation and a qualified immigration attorney should be contacted if this situation arises.
If we can start a business on H4 EAD, can the H4 visa EAD holder start the business with the receipt number or they have to wait till approval?
A: The EAD card is not like an H-1B transfer in which you can work based on the receipt in certain circumstances. Instead, you must actually have the card in your hand before you are eligible to work, even if it is for your own business.
Is there any premium processing for H4 visa EAD Application? If so, how many days will it take?
A: There is no premium processing for the H-4 application itself or for the EAD application. EADs typically take 90 days. In certain emergency situations, it may be possible to expedite a pending EAD application, but expedites are usually limited.
Can H4 Visa holder under new EAD work for multiple employers?
A: Yes, the EAD for H4 visa holders is not restricted to any particular type of employment. It can be full-time, part-time, multiple employers, short-term multiple employers, independent contractor (i.e. 1099), self-employed business owner, employment through a staffing agency, paid, unpaid internship, or not working at all.
Can the EAD holder on H4 visa status work for an employer and do or own business together at the same time?
A: Yes, H-4 status EAD holder can do both working for an employer and doing business at the same time.
Is this H4 EAD application can be submitted by an individual without any attorney? If so is online submitting the EAD application is possible?
A: Any immigration application can be submitted without the assistance of an attorney. The bigger question is whether it should be submitted without the assistance of an attorney. An application filed by an attorney does not get any special treatment, but an attorney will generally be able to ensure that the application is properly filed to the right address with all of the necessary documents. This can minimize delays in obtaining the approval.
E-filing is available for the I-765 form; however, the H-4 EAD is not yet listed as one of the eligible categories for e-filing. Check this website to confirm before attempting to e-file:http://www.uscis.gov/e-filing-i-765. As a side note, in general, I prefer paper filing for 99.99% of all applications I handle. Perhaps as the myUSCIS online tool is rolled out, online filing may become a more hassle-free process. For now, I will stick with paper.
When COS from H1B to H-4 status and EAD, will the H1B status be lost on approval of H4 or after approval of both H4 and EAD? Just in case, my H-4 COS is denied, what is my option?
A: The change of status to H-4 takes effect on the day of H-4 approval. Therefore, the H-1B status is lost when the H-4 is approved. What this means is that there is a potential that the H-4 will be approved and the EAD may be delayed. This would cause an individual in H-1B status to potentially be changed to H-4 without an EAD and unable to work until the EAD card is eventually issued.
The second part of the question related to a possible denial of the H-4 change of status is too case-specific to address here. In general, a properly filed application to change status to H-4 is unlikely to be denied unless either the main H-1B holder is out of status or the H-4 applicant is out of status. If this occurs, a qualified immigration attorney should be contacted to discuss the options in the event that an H-4 change of status is denied.
If I do COS from H1B to H4 to avail EAD benefit as my primary H1B holder has approved I-140, would I be H1B cap exempt, if I plan to switch back to H1B from H4 in future?
A: Yes, an individual who has been working in H-1B status and then changes status to H-4 can change status back to H-1B at a later time without being subject to the cap since he or she has been previously counted under the cap.
My H1B spouse has I-140 approved. If applying from India for H-4 for the first time, could I apply H4 visa and EAD together? Or should I get the H4 visa first, then come to US with that visa and then from US only I will be eligible to apply for EAD?
A: Unfortunately no. The EAD application requires you to submit your H4 status I-94 card, which you will only receive upon entry to the U.S. on the H4 visa. So, when considering job opportunities in the U.S., keep in mind that it will take about 90 days after your entry for you to be eligible to work.
Can we apply for Advance Parole (AP) to get travel clearance on the H4 visa EAD?
A: Unfortunately no. This particular EAD is not the same as the EAD that an individual receives based on a pending I-485. A pending I-485 makes an individual eligible for Advance Parole and that endorsement is usually included on the EAD card. The H-4 EAD does not have a provision for applying for Advance Parole. If you intend to travel, you will need a valid H-4 visa stamp in order to return to the U.S.
Do you have any more questions that you are not clear ? Add your questions, thoughts as comment.
Stay tuned on the blog, we have the next article coming up with much more questions on H4 Visa EAD…
Thanks again to Emily for kindly helping us answer the third 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 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.