On May 26, 2015, the government will begin accepting H-4 employment authorization document (EAD) applications for work authorization. Many H-1B physicians and their spouses have contacted us with questions about this exciting news. You may have these same questions as well so here are answers to some of the typical questions:
1. Who qualifies for the H-4 work cards?
There are only two types of H-4 spouses eligible for work authorization:
- Where the primary H-1B worker spouse is the beneficiary of anapproved I-140 petition; OR
- Where the primary H-1B worker spouse has obtained a 7th year or more H-1B visa extension because of a pending green card application. If the primary H-1B worker has a PERM labor certification or I-140 petition filed and pending for 365 days before the his or her 6 year H-1B limitation, he can obtain an additional one year H-1B status and extend his H-1B as long as the green card applications are pending
H-4 spouses of H-1B1s, H-2 or H-3 visa holders are not eligible under the rule at this time. Children who hold H-4 status, even if old enough to work, are not eligible under this rule.
2. Are there any restrictions on using the EAD?
The EAD provides unrestricted employment authorization. It can be used to work full time or part time for any employer in any field or position. It can also be used for self-employment.
3. When will the EAD expire?
The EAD will expire at the same time as H-4 status. Applicants should renew the H-4 and EAD at least 4 months in advance of expiration.
4. Is there a limit to the number of H-4 EADs the government will issue?
No. All who are eligible can apply for the EAD anytime after May 26. It's estimated that about 179,000 H-4 spouses will apply this year
5. If an applicant is another status, such as H-1B or F-1, can she change her status to H-4 and apply for the EAD at the same time?
Yes. These two applications may be filed at the same time. However, according to our latest information, the government needs to approve the I-539 change of status to H-4 before it will process the H-4 EAD.
Currently, it is taking 4-10 months for the government to adjudicate I-539 change of status applications. After that time, the government will begin processing of the EAD application (which could take another 3 months).
The government indicated in its 2/26/15 Stakeholders Call that it may speed up I-539/H4 EAD application packages in a more reasonable total timeframe, but we really can't predict processing timeframes at this time. Also, premium processing will not be available to file an I-539 and the EAD application,
6. Is there another faster way to obtain H-4 status ?
Yes, you can apply outside the U.S. at a consulate to obtain an H-4 visa stamp in your passport and return to the U.S. with H-4 status. This process can take a few weeks or more if there are delays so you could consider this option carefully.
7. I am currently on H1B. Can I still work if I apply for a change of status to H-4 until I get that approval notice?
Yes, you can work until the H-4 change of status is approved. However, once your status has been changed, you must stop work until you receive the EAD approval.
8. How long will it take the government to process the EAD application?
Typically, EADs can take 70-90 days to process. However, H-4 EADs are new and there could be many applicants. Therefore, we could see delays.
9. I'm a former J-1 physician with a J-1 waiver. Can I use the H-4 EAD to work in my waiver job?
If you are a J-1 waiver physician, you cannot change to H-4. You must work only in H-1B status until you have completed your three year service requirement. However, H-4 spouses of J-1 waiver physicians can receive an EAD if they meet the criteria we discussed.
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The information provided in this article is general and does not constitute legal advice. Immigration law is complex and every case is unique. For assistance for your specific circumstances, you are invited to contact us to the determine the best strategies for you.
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