Immigrantly

Immigration thoughts from an Immigration Lawyer.

Pros and Cons of Employment Authorization for H4

Leave a comment

On February 24, 2015, USCIS announced that it will grant employment authorization (EAD) to certain H4 holders, whose number is estimated to be as high as 179,600 people in the first year. USCIS will start accepting applications starting May 26, 2015. On February 26, USCIS hosted a teleconference, clarifying some of the rules and procedures of EAD application.

Background

A H4 status is given to spouses and children of H1B workers. A H1B is the most common type of working visa in the U.S., yet, unlike the spouses of E (Treaty Trader/Treaty Investor) or L (intra-company transferee) holders, H4 holders are not allowed to work in the U.S. This has created a lot of frustration for the family, because many spouses of H1B workers are professionals themselves and often worked full-time back in their own countries. However, after following the spouse to the U.S., they cannot seek any employment. The idea of granting H4 holders work authorization has been discussed for a long time, but it was never implemented. The plan to grant EAD to H4 holders was one of the many executive actions announced by the President in November 2014, but this plan was rather a less discussed one. It is interesting that this plan was brought to the surface right after the injunction of the implementation of DACA expansion.

Eligibility

To be eligible for EAD, you must:

  1. Be the spouse of a H1B holder; AND
    1. Children of H1B holders are also in H4 status, but they are not eligible for EAD.
  2. Have a H4 status; AND
    1. If you don’t have a H4 status, you can change your status to H4 or apply for a H4 visa abroad to be eligible for EAD.
  3. Have a H1B spouse who is the principal beneficiary of  an employment-based green card application, who has either:
    1. An approved I-140; OR
    2. A H1B status extended beyond the 6-year limitation based on Section 106(a) & (b) of AC 21, i.e. the H1B spouse’s Labor Certification (PERM application) or I-140 petition has been pending for at least 365 days.

Procedure

These are the expected steps of application based on the existing EAD application procedure.

  1. Fill out Form I-765 and gather supporting documents showing your eligibility.
    1. Proof of H1B/H4: I-797 approval notice, visa stamp, I-94, etc.
    2. Proof of Green Card Application: I-140 approval notice, PERM/I-140 receipt notice, etc.
    3. Proof of Marital Status: Marriage certificate, etc.
  2. Submit the application form and documents with a fee of $380
  3. Receive a Receipt Notice
  4. Go to a biometrics appointment
  5. Receive an approval notice with the EAD Card, or a denial notice.

If you and your H1B spouse need to extend your status at the same time, you can file I-129 (H1B), I-539 (H4) and I-765 (EAD) concurrently.

Validity of EAD

The validity period of EAD for H4 will be the same as the validity of your H4 status.

Pros and Cons

Pro 1: Flexibility

EAD is actually much more flexible than a H1B status. EAD allows you to work full-time or part-time, with one employer or multiple employers, as an employee or a contractor. The sweetest thing is that you can even start your own company with EAD!

Pro 2: Sponsor your H1B spouse

If you set up a company with EAD and the business goes well enough, your company may be able to sponsor your H1B spouse. He/she can get a concurrent H1B or simply transfer to your company. But quitting the green card sponsoring company may cause difficulties for the ongoing green card application. Since this is a lengthy discussing point by itself, I will leave it for different post.

Con: Dependency on H1B Spouse

Your EAD will be dependent on your H4 status, which means if your H1B spouse looses his status due to layoff, for example, you will loose your H4 status, which means you also loose your EAD. Moreover, if your spouse’s I-140 is withdrawn or revoked, you will no longer be eligible for EAD.

This new regulation will create a whole new level of possibility for entrepreneurship, as it allows skilled individuals to change their occupation from “homemaker” to their dream occupation. There are still some unanswered questions in regards to the eligibility and procedure of applying for the EAD. However, the USCIS is planning to publish more detailed guidelines before they start accepting the applications on May 26, 2015.

Stay tuned for more updates!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s