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News: USCIS Guidance, FAQs on filing EAD for H4 Visa Holders – Summary

Updated : USCIS released updated form I-765 to start filing on May 26th.

As many of you have been eagerly waiting for the DHS proposed rule in 2014 on EAD for H4 Visa holders, to become effective on May 26th, 2015 and wondering about the exact process, guidance and clarifications on many questions, USCIS has published official documentation and guidance on how to file the EAD application for H4 visa holders, including a set of FAQs that many H4 visa holders have on a variety of topics. While you can actual guides and FAQs on USCIS website, below is a quick summary of the Official guide and some key FAQs.

Summary of the EAD for H4 Visa Holders Official Guide.  

  • No changes from the original proposed final EAD rule for H4 holders that was passed earlier in Feb 2015. Quick re-cap, only certain H4 holders that fall under one of below categories are eligible for EAD.
    • Have an approved I-140, which is the immigration petition for foreign citizens to get Green Card or Permanent Residency in USA.
    • Have H1B visa status extended for the spouse beyond 6 years under AC21 Act, which allows H1B holders seeking Green Card to work and stay in USA beyond 6 years, if their Green Card or Permanent Residency Application is Pending.
  • USCIS clarified that H4 visa holders should NOT file the EAD application before May 26th, if filed they will reject the application. You can file either on or after May 26th, 2015.
  • H4 visa holders should file Form I-765 along with Fee of $380 for applying for EAD.
  • [Updated] USCIS released updated form I-765 that includes options for H4 visa holders applying for EAD.
  • USCIS has listed that the EAD application should include Evidence of
    • The applicant’s valid H-4 Visa Status
    • Government issued Photo ID
    • Proof of relationship with H1B holder ( Marriage Certificate )
    • Basis for eligibility for the EAD based on any of the above two criteria, under which you are applying for EAD.

You can refer USCIS official page for the details of evidence they are seeking.

  • If you are submitting any documents in local langue other than English, you need to have them translated to English by a certified translator.
  • You cannot e-file the form of I-765 for EAD application, at the moment you must send a mail with physical copies of the documents.
  • You have three options to file EAD applications based on your situation and eligibility
    • Standalone EAD application, if you are already on H4 visa status
    • EAD application along with Change or extension of status of H4 visa using I-539 form.
    • EAD application along H1B Application using I-129 form, along with Change/ extension of H4 status using I-539 form.
  • USCIS first will decide your eligibility of H4 status first and then only the 90 day clock for adjudicating your EAD filed will begin.
  • You cannot work, until you have an approved EAD from USCIS. You need to wait for the approved EAD document before you plan to work.
  • The validity of the EAD document will be same as the validity of your H4 status on your I-94. You cannot work after the expiration date, you need to apply for renewal of EAD document. Also, you cannot file for the renewal before 120 days of the expiration.
  • USCIS advises to be careful and avoid fraud and scams that many claim to take money and help. Read USCIS Avoid scams

Summary of the FAQs for  EAD for H4 Visa Holders by USCIS.

USCIS have given a set of FAQs based on the feedback from the teleconference with stakeholders. Below is high level summary

  • There is no cap and this is not a onetime opportunity. You can apply as H4 visa holder anytime, if you are eligible .
  • You need to be in US to apply the EAD application as H4 Visa holder
  • As H4 visa holder, if your H1B spouse’s I-140 is revoked, you are not eligible for EAD.
  • If your H1B Spouse have I-140 approved from previous employer and valid, you can apply for EAD as H4 visa holder. It does not have to be current or same employer.
  • If you are on H4 EAD and your spouse’s I-140 is revoked, USCIS can revoke your H4 EAD as well.
  • You can work for anyone and anywhere on H4 EAD, including staring your own business and hiring employees as well.
  • You can do concurrent filing of EAD and Change/extension of Status
  • You can do concurrent filing of New H1B + EAD + Change/ extension of status
  • EAD for H4 should be filed as paper based forms only by sending copies.
  • You need to only submit legible copies of the original documents, NO need of originals. If you do send originals, USCIS will not return and they will become part of the file.
  • If you have change/ extension of status pending on May 26, 2015, USCIS recommends that you wait until that is complete before filing EAD application to avoid issues.
  • No changes in adjudication process of I-140 due to the new EAD rule, they will remain like before.
  • If you are on F1 and working on OPT, you cannot do continuous employment from OPT to H4 EAD. USCIS will first check your H4 status and then process your H4 EAD, so you cannot continue working on OPT and have continuous employment.
  • You may travel when your EAD application is filed with USCIS on H4 status, but USCIS recommends not to travel because, if they request for more info and you do not respond, they may issue an RFE or Notice of Intent to Deny (NOID).
  • Also, if you are filing concurrent applications with Change of status to H4 and EAD together and if you travel outside of US during processing time, USCIS will deny both the applications as abandoned. So, they recommend not to travel outside of US during the process.
  • EAD is only an employment document and NOT visa, you cannot use it to enter or exit the country.

Also, You can check out our previously published H4 Visa EAD FAQs by attorney- Part 1 and series of Part 2, Part 3, Part 4 links in the first article.

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 

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