Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
Remember- These writings are provided for general information only and do not constitute legal advice, nor do they create any attorney-client relationship. Each person's needs and requirements are different and require a personal evaluation to determine the proper legal course of action.

Sunday, March 29, 2015

H-4 EAD Your Personal Q&As Wednesday, April 1, 2015

Updated December 30, 2015

The comments on this post were from a live discussion on H-4 EAD issues held on April 1, 2015. That discussion has ended and this post is now closed to comments. 


See more recent H-4 EAD Updates

See How to File I-140 Based H-4 EADs on Your Own.

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Blog Comments open on April 1st for questions until 1:00 p.m. CDT.

For those who still may have questions about H-4 EAD processing or eligibility, I will be happy to answer any questions based on the information we now have available.

All questions and my answers will be posted as comments to this posting – no questions will be taken by direct email – so everyone will see all the conversations.

The usual disclaimer:  Any answers to comments are based only on the information presented and in no way should be taken as a substitute for a full consultation with a qualified attorney.  Any comments or answers to comments does not create an attorney-client relationship and the presence of additional facts may lead to starkly different advice.
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  1. Hi James,
    I am currently working on H1-B visa. 
    My wife is also on H1-B. She has an approved and active I140 through Employer A and she recently joined employer B and got her H1-B extended till 2018. 
    I know I can I apply for H4 EAD based on my wife’s H1B (she has spent more than 6 years on H1B and also has I140 through employer A, they are not planning to revoke I140 as of now).
    But I don’t want a situation where H4 (change of status) comes before EAD and I have to stop working as I will be on H4 status. 
    My questions: 
    1.How can I apply for H4 & H4 EAD, so that I don’t have to sit idle in case H4 comes before EAD? 
    2.Can I apply for change of status from H1B to H4 with consular Processing along with H4 EAD, once EAD comes I will go to my home country and come back on H4 Visa.  
    3.I have a valid (valid till Oct 2016) H4 Visa printed on my passport, do I still need to go to Visa consulate and get a new stamp because of consular processing or I can just go out of the USA and come back showing H4 visa stamp.
    Thanks in advance.

    1. All good questions. I’ll answer (1) in the next comment, since it is the same issue.

      I’m sure I will be talking today about the many scenarios involving travel before, during and after filing for an H4 EAD. For many of the answers we will have to wait for USCIS answers in their FAQs.

      But for what you are asking, it is not possible to do a change of status to H4 and request consular processing. You either do a COS or you consular process; separate processes. I appreciate what you are trying to do – avoid the employment gap – and hopefully as this rule develops we will find some answers for this problem.

      In theory, someone can reuse an old but still valid H4 visa to reenter, and your status will then be H4 without the need to do a change of status from H1B to H4.

      In practice, it may raise some questions at the port of entry, especially if the annotation on the old H4 visa shows a case number for the H1B spouse’s prior employer. Doable, expect lots of questions, be ready to give your assurance that you will no longer be working in your prior H1B position and be prepared to show absolute proof the spouse is in valid H1B status with the new employer.

  2. Hi,

    I am on h1b from 6 years, I want to apply for h4ead by COS. Do I need to take break from my job to change my status? I am not sure if my company agrees for a break for couple of months.


    1. This is another one of those big questions USCIS needs to quickly address.

      Maybe this would be a good time to mention the American Immigration Lawyers Association. AILA and other community groups have regular meetings with the many branches of USCIS. The next round of meetings are set for later this month. Many H4 EAD questions have been submitted for discussion. These meetings provide an opportunity to lay out the practical problems that will be encountered during implementation of this rule, and in some cases, an opportunity to discuss possible solutions. AILA will make the results of these meetings available to its members, and it is hoped that some of these concerns will be reflected in the USCIS FAQs.

      You are concerned about having an employment gap after changing status to H4.

      Here is a formal restatement of the problem:

      Since the final rule allows an H-4 to request employment authorization concurrently with a change of status, any time delays between the change of status and the EAD validity start date can create difficulties for applicants already lawfully employed. Consider an H-1B worker or F-1 student on OPT, currently employed, who requests an H-4 EAD simultaneously with their request to change status to H-4. If the EAD effective date comes after the status change, the H-4 may experience a substantial gap in employment authorization and may unknowingly continue employment until receiving notice of the status change, resulting in an inadvertent status violation.

      Yes, this can create many major problems and the answer will depend on how USCIS decides internally to coordinate processing of simultaneously filed 539s and 765s.

  3. Hi James,

    I would like to know if we can apply H4 EAD while my wife's H1 to H4 transfer is in progress. I have a valid I140 approval with 2 more years left on my H1B & same with my wife. But, she would like to change status to H4 due to change in job location through her H1B employer. Please let me know if I can file her H1 to H4 transfer, and then apply H4 EAD with that USCIS receipt as may take little longer for H4 transfer due to kick start of 2016 H1B processing.


    1. The question you asked, and has also been asked to USCIS, is, “Will USCIS allow stand-alone I-765 filings based on a pending extensions or changes of status?

      The answer may be yes, but I also know that matching up a later filed application to a previously filed petition is a labor-intensive process for USCIS and is not always accomplished as efficently as everyone wishes. Additionally,

      At some point USCIS will issue special instructions containing H4 EAD filing addresses. These instructions may contain special instructions for filing stand-alone I-765s when another petition is pending.

  4. I want to know whether a H4 Spouse can apply for EAD when they are abroad? for e.g. somebody who is on F1 VISA going to their home country to get their H4 stamped ? Can they apply for EAD from their home country after getting their H4 stamped?

    1. This is another detail that was not addressed in the final rule.

      I have not found any other immigration benefit where a person is allowed to apply for an actual EAD from outside the United States, usually because you must be in the U.S. and in some particular status to apply for an EAD based on being in that status.

      As generous as USCIS may be with the H4 EAD rule, I would be surprised if this is allowed.

  5. Hi James,
    My H1 expires in June2015,we are planing to apply extension H1 &H4.
    what is the best time to apply? i mean apply now in normal processing and based on receipts(pending) can we capply H4 EAD on May 26th? or best to apply in Premium process in May 26th all together(Concurent processing)?


    1. Vic-

      I am facing that same question from many of my clients. There is no best answer. You just have to make a choice and hope it turns out to be a good decision.

      Remember, anyone who is trying to predict how long USCIS will take to do anything is just guessing, and will often be wrong!

      So, with that warning, let’s do a little brainstorming. Here are the choices, along with my guesses:

      1. File EOS as regular filing now, then file 765 on May 26th while EOS pending.

      Historically, there is no pattern to support a guess of how long it will take USCIS to decide an extension filed in April. In past years, it ranged from 2 to 7 months. Also, we know they will not grant the H4 EAD until after the extension is approved. Then we have the problem of filing in May the I-765 based on the pending petition. Probably the least preferred option.

      2. File EOS now premium processing, then file 765 on May 26th.
      EOS should be approved long before May 26th. File EAD May 26 and likely to receive the H4 EAD August or September.

      3. File EOS with premium processing and 765 on May 26th
      This is an interesting option. We know what happens when you file H1B and H4 extensions with premium processing. USCIS decides the H1B very quickly, and as a courtesy, they simultaneously decide the H4 extension.

      So the first question is, will they also quickly decide, as a courtesy, the I-765? I have had mixed results in similar L-2 spouse EADs, although most of the time, the I-765 was decided along with the extension.

      So, if you chose #3, you have the possibility of getting an EAD as early as June. But if USCIS decides to not give a quick decision on the EAD, and they are not required to, then your EAD might be delayed a couple of weeks longer than had you chosen option #2.

      In a few months, the best answer will be obvious. But until we get more answers from USCIS, and view enough decisions to discern the pattern of their processing, there are no perfect answers.

      As a side note, your status ends in June, so any EAD you receive will be effective immediately. For others that are filing 5-6 months in advance, there is a completely different problem that I’ll discuss elsewhere.

  6. Hi James,
    My Spouse's 7th year H1 extension expiring this month but has valid I94 upto Oct2015. I have my H4 expiring this month.
    Spouse's company is applying for our H1 and H4 extension this week on regular processing. We have approved Perm ,I140 yet to apply.
    My question is "Can I apply for H4 EAD now with our extension filing. If no, Can I apply on 26th May based on our receipt# from USCIS.
    If yes, Can I start working on H4 EAD receipt# or do I have to wait upto EAD approval.

    1. I am a little confused how your spouse’s status ends this month but her I-94 is to 10/2015. You may need to explain that.

      Unfortunately, you cannot file for your EAD with the extension this week..

      It seems likely that you can file it on May 26, but we are waiting for confirmation of this from USCIS.

      USCIS says you cannot begin working until you receive the actual EAD. Obviously, an employer cannot hire you without proof of employment eligibility, and even if you plan on being self-employed, you do not want to begin prior to the EAD start date. That date will be found on either the card or the approval notice.

  7. First of all, thank you Mr. Austin for your informative blogs and this Q&A session.

    I am a H4 holder and was recently matched into a medical residency. My contract requires me to start working on June 30th. This job needs me to take care of at least ten patients from day one. Not being able to work will leave the hospital short-handed. I was hoping to use H4-EAD to begin residency on time, but I heard that there is no premium processing. Is there any way to speed up the processing if I can provide some proof of emergency from my hospital to USCIS?

    Now it is time for me to file H4-extension. Can H4 extention and H4-EAD be filed together on May 26th through premium processing so I may get EAD sooner?

    If I submit H4 extension now, and on May 26th I file H4-EAD while H4 extension is still pending, will the pending status affect the timing for H4-EAD?


    1. I am happy to be of service.

      After you posted your question, I posted replies to earlier messages that cover two of your questions, so I’ll just refer you to those comments.

      There are rare occasions when USCIS might expedite an EAD. If you would email me the city of your residency (congratulations!), perhaps I can give you some suggestions.

  8. Hello,

    I am currently on my STEM OPT and I am working. My OPT is valid till Jan, 2016. If I apply to H4 EAD along with COS to H4 will I have break in work?
    Will COS TO H4 and H4 EAD processed at same time or one after the other? If one after the other then I can not work once H4 is approved but H4 EAD is still in process.
    I do not want any break in my employment. Is there any way this issue can be solved?

    Please give a detailed reply if you know anything with respect to my issue.

    1. I do not have a more detailed answer than what I gave in the second comment, above.

      The risk of an employment gap for people changing from H1B or F-1/OPT is a very serious concern that will need to be addressed by USCIS before this rule goes into effect.

  9. I am in 8th year extension process having approved perm and pending I140. Can I apply H4 EAD for my spouse on 26th May based on our receipt# from USCIS. Can she start working on H4 EAD receipt# or have to wait until EAD approval.

    1. Please see my responses above regarding filing an I-765 based on an already-pending extension application.

      Unfortunately, she must await for the EAD to be approved before beginning employment.

  10. I got my 7th year extension on AC 21106 (a) based on my PERM process being pending for more than 1 year. But I still did not complete my 6 years on my H1 B period by May 26th will my spouse who is on H-4 eligible for EAD?

    1. Please correct me if I am misunderstanding your facts.

      You are in an H1B extension that includes what was left of your first 6 years, PLUS an additional one year because of 106(a), and the one year that was given for 106(a) does not begin until some time after May 26th.

      So your question is if your spouse can ask for an H4 EAD on May 26th.

      A good question to end this session. You get several different answers.

      First answer. Yes, if your spouse is within four months of when you begin the one year under 106(a), she can apply for the H4 EAD on May 26th. (I can tell you as a caution, the evidence package in 106(a) cases like yours can become very complex.)

      Second answer. Probably, if your spouse is four to six months from when you begin the one year under 106(a), she can apply for the H4 EAD on May 26th. The final rule was not clear on this, and there is a conflict between USCIS’ comments in the proposed rule and the final rule. The proposed rule said you can file 4 months in advance; the final rule said you can file 6 months in advance if filed simultaneously with a change/extension of status. It left open how far in advance you can file a stand-alone EAD request.

      Third answer. There is no third answer because you did not ask the biggest question: “Is your spouse eligible for an H4 EAD during that part of your current extension that comes before the one year under 106(a)? That is the issue USCIS could not answer on their outreach call, and I discussed in detail towards the end of this blog post:

      Like the answer to many of the questions today, we will have to wait for the answers.

  11. As it is now after 100pm, I will close the board to futher questions. However, I will continue to answer the questions already posted.

    All of these questions just highlight the difficulty of integrating even a simple rule into a complicated body of law and a labyrinth of processing requirements!

    I will continue to post on the blog any answers to these H4 EAD issues as they are made public.