Mahaprasad Nanda

The H4 visa is a non-immigrant visa category for dependents (spouses and children under 21 years of age) of H-1B visa holders1. It allows them to legally live in the United States with their H-1B spouse. The H-1B visa itself is a temporary work visa for foreign professionals in specialty occupations that require theoretical or technical expertise in specialized fields such as IT, finance, accounting, architecture, engineering, mathematics, science, and medicine2. H-4 visa holders often possess valuable skills and qualifications, but until recently, they were unable to work in the U.S. This changed with the introduction of the H4 EAD (Employment Authorization Document), a work permit that allows spouses of certain H-1B visa holders to join the U.S. workforce3. This has opened up opportunities for H-4 spouses to contribute their talents, pursue their careers, and achieve financial independence4.

What is an H4 EAD?

An H4 EAD is a document issued by United States Citizenship and Immigration Services (USCIS) that grants work authorization to eligible spouses of H-1B visa holders3. It allows H-4 dependent spouses the legal right to work in the United States4. Unlike the H-1B visa, which is tied to a specific employer and job, the H4 EAD is an "open work permit." 5 This means H4 EAD holders have the flexibility to work for any employer in any field, as long as the job is legal in the U.S1.

Benefits of an H4 EAD

The H4 EAD offers numerous advantages to H-4 visa holders and their families:

• Financial Independence: The H4 EAD empowers spouses to earn their own income, reducing their financial dependence on their H-1B partners. This can contribute to greater financial stability for families and provide a sense of security and self-reliance for spouses4.
• Career Advancement: With the ability to work, H-4 spouses can pursue their professional aspirations, gain valuable work experience in the U.S., and build their careers. This can lead to increased job satisfaction, personal growth, and enhanced career prospects in the long term4.
• Economic Contribution: H4 EAD holders contribute to the U.S. economy by working, paying taxes, and filling labor needs in various sectors. This benefits both individual families and the broader economy6.
• Improved Quality of Life: Working and pursuing their own interests can significantly improve the quality of life for H-4 visa holders. It can provide a sense of purpose, increase social interaction, and enhance overall well-being4.
• Flexibility: The H4 EAD offers flexibility in terms of work arrangements. Holders can work full-time, part-time, or freelance, and they have the freedom to change jobs as desired. This allows spouses to tailor their work life to their individual needs and preferences4.
• Lower Cost: Obtaining an H4 EAD is generally more affordable than securing an H-1B visa. This can be a significant advantage for families, especially when considering the costs associated with immigration processes and legal fees7. For instance, while the H-1B process can involve significant employer costs for filing fees and legal representation, the H4 EAD application process is typically less expensive.
• No Prevailing Wage Requirement: Unlike H-1B visa holders, H4 EAD holders are not subject to prevailing wage requirements. This provides greater flexibility in terms of compensation and allows spouses to negotiate salaries based on their skills and experience7.

Eligibility Requirements for H4 EAD

To qualify for an H4 EAD, applicants must meet specific criteria:

• Be the spouse of an H-1B nonimmigrant: The applicant must be legally married to an H-1B visa holder1.
• H-1B spouse must have an approved I-140 or have H-1B status under AC21: The H-1B spouse must either have 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 (AC21)8. AC21 allows H-1B nonimmigrants to extend their status beyond the typical six-year limit in one-year increments if certain conditions in the green card process are met. This provision benefits H-1B workers and their families who are waiting for their green card applications to be processed9.
• Be in H-4 nonimmigrant status: The applicant must currently hold a valid H-4 visa1.
• Be physically present in the U.S.: The applicant must be residing in the United States1.
• Not have any other work authorization in the U.S.: The applicant should not possess any other valid work permit1.

H4 Visa Interview

Before applying for an H4 EAD, individuals need to obtain an H-4 visa, which usually involves an interview at a U.S. embassy or consulate10. The purpose of this interview is to verify the legitimacy of the relationship between the applicant and their H-1B spouse10. During the interview, applicants may be asked questions about their marriage, living arrangements in the U.S., and their spouse's employment10. Some common questions include:

• How long have you and your spouse been married?
• Where do you plan to live in the U.S.?
• What does your spouse do for a living?
• Do you plan to work in the U.S.?

It's important for applicants to be prepared to answer these questions truthfully and provide any necessary documentation to support their application.

H4 EAD Application Process

To apply for an H4 EAD, applicants need to follow a specific process:

1. Gather Required Documents: Begin by collecting all the necessary documents, including:

• A copy of your H-4 visa11.
• A copy of your marriage certificate11.
• Copies of valid passports for both you and your spouse11.
• A copy of your I-94 arrival/departure record13.
• A copy of your spouse's I-94 arrival/departure record11.
• A copy of your spouse's I-129, Petition for a Nonimmigrant Worker13.
• A copy of your spouse's I-797 approval notice for H-1B status13.
• A copy of your spouse's Labor Condition Application (LCA)13.
• Proof of eligibility for the EAD, such as a copy of your spouse's I-140 approval notice or proof of H-1B status approval beyond the sixth year12.
• Two identical passport photos4.

1. Complete Form I-765: Download the most recent version of Form I-765, Application for Employment Authorization, from the USCIS website14. Fill out the form accurately and completely using black ink, following the provided instructions15.
2. Attach Supporting Documents: Organize and attach all the required supporting documents to your application. Use paper clips to keep the documents together, as USCIS prefers them over staples15.
3. Pay the Filing Fee: The filing fee for Form I-765 can be paid by check or money order made payable to "U.S. Department of Homeland Security." 4 Ensure you include the correct fee amount, which is $520 for applications submitted by mail and $470 for online applications4.

Submit the Application: Once you have completed the form, gathered the supporting documents, and paid the fee, mail the application package to the appropriate USCIS lockbox facility. The correct address will depend on your location and filing category, and you can find this information on the USCIS website1

H4 EAD Processing Times

The time it takes for USCIS to process an H4 EAD application can vary based on several factors16. While the average processing time is estimated to be between 3.5 to 5 months16 some sources indicate it can take 6-8 months to receive the Employment Authorization Document (EAD card)4. It's important to be aware of these potential delays and plan accordingly.

Here's a table summarizing the factors that can influence H4 EAD processing times:

Unfortunately, processing delays can have significant consequences for H-4 EAD applicants, including potential job loss17. This highlights the need for efficient processing and timely adjudication of applications.

Premium Processing for H4 EAD

As of December 2024, premium processing is not an option for H4 EAD applications18. Premium processing is an expedited service offered by USCIS for certain application types, allowing for faster processing for an additional fee. While there have been proposals to extend premium processing to H4 EADs, it has not yet been implemented19. If and when it becomes available, the premium processing fee for H4 EAD is expected to be $1,685, based on the latest fee schedule21. This would guarantee processing within a shorter timeframe, typically 15 calendar days.

H4 EAD Benefits and Limitations

Benefits:

• Work Authorization: The most significant benefit of the H4 EAD is that it allows H-4 dependent spouses to legally work in the United States4. This opens up opportunities for financial independence, career growth, and personal fulfillment.
• Flexibility: H4 EAD holders enjoy considerable flexibility in their work arrangements. They can work for any employer, in any position, and for any number of hours, as long as they comply with minimum wage laws1. This allows spouses to pursue various career paths and adapt their work life to their individual circumstances.
• Portability: The H4 EAD is portable, meaning holders can change jobs without affecting their work authorization4. This provides flexibility and career mobility for spouses who may want to explore different job opportunities or industries.
• Dual Intent: The H4 visa, and by extension the H4 EAD, has "dual intent." 18 This means that H4 visa holders can pursue lawful permanent resident status (a green card) without jeopardizing their H-4 status. The H4 EAD allows spouses to work and maintain legal status while their green card application is being processed, providing a bridge to permanent residency.
• EAD Validity: The validity period of the H4 EAD generally aligns with the expiration date on the H-4 visa holder's Form I-94, which indicates their authorized stay in the U.S14. This ensures that the work authorization remains valid as long as the H-4 visa holder maintains their legal status.

Limitations:

• Dependent on H-1B Status: The H4 EAD is inherently linked to the H-1B spouse's visa status. If the H-1B spouse loses their H-1B status, the H4 EAD also becomes invalid11. This underscores the importance of the H-1B spouse maintaining their visa status and complying with all relevant regulations.
• EAD Validity: The H4 EAD has an expiration date and requires renewal to maintain work authorization6. This means that H4 EAD holders need to be proactive in renewing their EADs before they expire to avoid any gaps in employment.
• Potential Delays: Processing times for H4 EAD applications can be significant, and there is currently no premium processing option available18. This can create uncertainty and potential disruptions for H-4 spouses who are seeking employment or need to renew their work authorization.

Frequently Asked Questions about H4 EAD

1. Can I travel outside the U.S. while my H4 EAD application is pending?

It's generally not recommended to travel internationally while your H4 EAD application is under review. Traveling could potentially complicate or delay the processing of your application2.

2. Can I study in the U.S. on an H-4 visa?

Yes, H-4 visa holders are permitted to study in the U.S. without any restrictions1. This allows spouses to pursue educational opportunities and enhance their skills while accompanying their H-1B spouse in the U.S.

3. What if I lose my EAD card?

If your EAD card is lost, stolen, damaged, or destroyed, you can apply for a replacement by submitting a new Form I-765 and paying the required fee11. It's essential to report the loss or damage to USCIS and follow the proper procedures for obtaining a replacement card.

4. Can I apply for an H4 EAD if my H-1B spouse's I-140 was filed by a previous employer?

Yes, the employer who filed the I-140 petition for your spouse does not affect your eligibility for an H4 EAD. As long as your spouse has an approved I-140, you can apply for an H4 EAD, regardless of whether your spouse is still working for the same employer11.

5. Is there a limit on the number of H4 EAD applications approved each year?

No, there is no annual limit on the number of H4 EAD applications that USCIS can approve11. This means that all eligible H-4 spouses who meet the requirements can apply for and receive an H4 EAD.

H4 EAD Extension Process

To renew your H4 EAD and maintain your work authorization, you need to take the following steps:

1. File Form I-765 for Renewal: Complete a new Form I-765 and select the appropriate category for renewal4. Ensure you use the most recent version of the form available on the USCIS website.
2. Gather Updated Documents: Provide updated documentation to demonstrate that you still meet the eligibility requirements for the H4 EAD. This may include proof of your spouse's current H-1B status, a valid H-4 visa, and any other necessary approvals4.
3. Submit the Application: File your renewal application before your current EAD expires to prevent any gaps in your work authorization4. It's crucial to submit your application in a timely manner to avoid potential disruptions to your employment.

Automatic Extension:

USCIS offers an automatic extension of employment authorization for certain EAD categories, including the H4 EAD4. If you file a timely renewal application before your current EAD expires, you may be eligible for an automatic extension of your work authorization24.

• 180-day Extension: In some cases, you may be eligible for an automatic 180-day extension of your EAD.
• 540-day Extension: For renewal applications received on or after May 4, 2024, USCIS implemented a temporary final rule that provides a 540-day automatic extension of employment authorization24. This extension aims to address prolonged processing times and help individuals maintain their work authorization while their renewal applications are pending. To qualify for this extension, you must have filed your Form I-765 renewal application before your current EAD expired24. If eligible, you will receive a Form I-797C Notice of Action from USCIS confirming the 540-day automatic extension.

It's important to note that the automatic extension is subject to certain conditions and may not apply to all H4 EAD renewals25. It's essential to review the latest USCIS guidelines and consult with an immigration attorney if you have any questions about your eligibility for the automatic extension.

How the EDAKUNNI Settlement Case Affects H4 EAD

The Edakunni v. Mayorkas settlement, reached in January 2023, has had a significant impact on the processing of H4 EAD applications26. This settlement mandated that USCIS adjudicate H-4 and L-2 dependent status and EAD applications together with the principal applicant's H-1B or L-1 petition when filed concurrently26. This "bundling" approach was intended to streamline the process, reduce processing times, and prevent gaps in work authorization for H-4 and L-2 spouses27.

However, the Edakunni settlement is scheduled to expire on January 18, 202528. After this date, USCIS may revert to processing H4 EAD applications separately from the principal H-1B petitions. This could potentially lead to longer processing times for H-4 EAD applications and increase the risk of work authorization gaps for H-4 spouses28. This could also pose challenges for employers who rely on the skills and contributions of their H-4 employees28.

Conclusion

The H4 EAD is a valuable program that enables spouses of certain H-1B visa holders to work and contribute to the U.S. economy while residing in the United States. It offers numerous benefits, including financial independence, career advancement, and an improved quality of life. However, it's essential to understand the eligibility requirements, application process, and potential limitations associated with the H4 EAD. As immigration policies can change, staying informed about the latest USCIS guidelines and seeking professional guidance when needed is crucial.

Synthesis

The H4 EAD is a significant benefit for spouses of H-1B visa holders, allowing them to work in the United States. To be eligible, the H-1B spouse must have an approved I-140 petition or have H-1B status under AC21. The application process involves filing Form I-765 with supporting documents and paying the required fee. While processing times can vary, the H4 EAD offers valuable opportunities for financial independence, career growth, and contributing to the U.S. economy. However, it's important to be aware of the limitations, such as dependence on the H-1B spouse's status and the need for renewal. The Edakunni settlement has brought about changes in the processing of H4 EAD applications, but its expiration in January 2025 may lead to potential challenges. Staying informed about the latest developments and seeking professional guidance is crucial for H-4 spouses seeking to utilize this valuable benefit.