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Navigating the Labyrinth: How to Get an EAD for an H-4 Visa

Securing an Employment Authorization Document (EAD) as an H-4 visa holder involves a specific process tied to the H-1B status of your spouse. The key lies in demonstrating that your spouse either has an approved I-140 immigrant petition or has been granted H-1B status beyond the standard six-year limit under certain provisions of the American Competitiveness in the Twenty-first Century Act (AC21).

Understanding the H-4 EAD Eligibility Criteria

Before diving into the how-to, let’s clarify who is eligible. You can apply for an EAD if you are an H-4 dependent spouse and your H-1B spouse meets one of the following conditions:

Approved I-140 Petition: Your spouse is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker. This signifies that they are on the path to a green card.
Extended H-1B Status Beyond Six Years (Under AC21): Your spouse’s H-1B status has been extended beyond the usual six-year limit under sections 106(a) and (b) of AC21. This extension is possible if a labor certification application or I-140 petition was filed at least 365 days before the end of their sixth year in H-1B status.

If neither of these conditions is met, unfortunately, you are not currently eligible to apply for an H-4 EAD.

The Step-by-Step Guide to Obtaining Your H-4 EAD

Here’s a practical roadmap to obtaining your Employment Authorization Document:

1. Gather the Necessary Documentation

This is arguably the most crucial step. Accuracy and completeness are paramount. You will need the following documents:

Form I-765, Application for Employment Authorization: Download the latest version from the USCIS website. Complete it meticulously, ensuring all information is accurate and truthful. Pay close attention to the specific eligibility category required for H-4 EAD applicants: (c)(26).
Passport and Visa Copies: Provide copies of your passport biographical page, your current H-4 visa, and any previous H-4 visas.
I-94 Arrival/Departure Record: Include a copy of your most recent I-94 record, demonstrating your lawful H-4 status. You can obtain this from the CBP (Customs and Border Protection) website.
H-1B Spouse’s Documents: This is critical for establishing eligibility. You must provide:
- Copy of Approved I-140 (if applicable): A copy of the I-797 approval notice for your spouse’s approved I-140 petition.
- H-1B Approval Notices: Copies of your spouse’s H-1B approval notices (I-797 forms) extending their status beyond the six-year limit, if applicable. These documents should clearly indicate that the extension is based on sections 106(a) and (b) of AC21.
- H-1B Spouse’s I-94: A copy of your spouse’s most recent I-94 record.
Marriage Certificate: A copy of your marriage certificate to prove the relationship to the H-1B principal alien. If the certificate is not in English, provide a certified translation.
Passport-Style Photos: Two recent passport-style photographs taken within the last 30 days, meeting USCIS specifications. Write your name and A-Number (if you have one) lightly on the back of each photo.
Previous EAD Copies (if applicable): If you previously held an EAD based on H-4 status, include copies of both the front and back.
Filing Fee: As of my last update, there is a filing fee for the I-765 form. Always check the USCIS website for the most current fee schedule. You can pay by money order, personal check, cashier’s check, or credit card using Form G-1450, Authorization for Credit Card Transactions.

2. Complete Form I-765 Accurately

This form is the cornerstone of your application. Double-check every field for accuracy. Mistakes can lead to delays or even denial.

Eligibility Category: This is absolutely vital. Select “(c)(26)” as your eligibility category. This signifies you are applying for an EAD as an H-4 dependent spouse based on your spouse’s H-1B status meeting the eligibility criteria (approved I-140 or extended beyond six years under AC21).
Personal Information: Ensure your name, address, date of birth, and other personal information match your passport and other official documents.
A-Number and USCIS Online Account Number: If you have previously been assigned an A-Number (Alien Registration Number) or a USCIS Online Account Number, enter it accurately.
Sign and Date: Don’t forget to sign and date the form. An unsigned form will be rejected.

3. File Your Application with USCIS

Determine the correct USCIS Service Center to which you should mail your application. This information is typically found on the USCIS website or in the instructions for Form I-765.

Mailing Address: Send your complete application package, including all supporting documents and the filing fee, to the designated USCIS Service Center. Use certified mail with return receipt requested to track your application.
Online Filing (Potentially): USCIS is increasingly moving towards online filing. Check if online filing is available for Form I-765 based on the (c)(26) eligibility category. Filing online can often expedite the process.

4. Attend Biometrics Appointment (If Required)

USCIS may require you to attend a biometrics appointment. You will receive a notice in the mail with the date, time, and location of your appointment.

Arrival: Arrive on time with your appointment notice and a valid government-issued photo ID.
Process: USCIS will collect your fingerprints, photograph, and signature for background checks.
Compliance: Failure to attend the biometrics appointment can result in denial of your application.

5. Monitor Your Case Status

After filing your application, you will receive a receipt notice (Form I-797C) from USCIS with a receipt number.

USCIS Website: Use the receipt number to check your case status online at the USCIS website. This will provide updates on the progress of your application.
Inquiries: If you have not received any updates after a reasonable period (check USCIS processing times), you can submit an inquiry online or contact the USCIS Contact Center.

6. Receive Your EAD Card

If your application is approved, you will receive your EAD card in the mail.

Verification: Carefully verify that all information on the card is accurate.
Validity Period: Note the validity period of your EAD. You will need to renew your EAD before it expires if you wish to continue working.

H-4 EAD: Frequently Asked Questions (FAQs)

1. How long does it take to get an H-4 EAD?

Processing times vary depending on the USCIS Service Center handling your case. Check the USCIS website for current processing times for Form I-765. It can range from several months to over a year. Factors such as workload and background checks influence the timeline.

2. Can I work in any job with an H-4 EAD?

Yes, once you receive your H-4 EAD, you are authorized to work in almost any job in the United States. There are no restrictions on the type of employment.

3. Can I start a business with an H-4 EAD?

Yes, you can start your own business with an H-4 EAD. Your employment authorization allows you to be self-employed.

4. What happens to my EAD if my spouse loses their H-1B status?

If your spouse loses their H-1B status, your H-4 status and EAD will also be affected. You would need to obtain a different valid immigration status to remain in the United States and continue working.

5. Can I travel outside the US while my H-4 EAD application is pending?

Traveling outside the US while your H-4 EAD application is pending generally doesn’t invalidate the application, as long as you maintain your H-4 status. However, it’s always best to consult with an immigration attorney to ensure your specific situation allows for travel.

6. How do I renew my H-4 EAD?

You must file Form I-765 to renew your EAD. Submit your renewal application well in advance of your current EAD’s expiration date to avoid a lapse in employment authorization. The same eligibility criteria and documentation requirements apply as with the initial application.

7. What if my H-1B spouse changes employers?

As long as your spouse maintains their H-1B status with the new employer and continues to meet the eligibility criteria (approved I-140 or AC21 extension), your H-4 EAD remains valid. Provide documentation of the H-1B transfer when you renew your EAD.

8. What is the difference between an H-4 visa and an H-4 EAD?

The H-4 visa allows you to enter the United States as a dependent of an H-1B visa holder. The H-4 EAD is a separate document that grants you permission to work in the United States, provided you meet specific eligibility requirements.

9. Can I apply for an H-4 EAD if my spouse’s I-140 is pending, but not approved?

No, you are only eligible for an H-4 EAD if your spouse’s I-140 has been approved. A pending I-140 is not sufficient.

10. Does the H-4 EAD affect my spouse’s path to a green card?

No, your employment through the H-4 EAD does not directly affect your spouse’s path to a green card. Their green card application is based on their own employment and qualifications.

11. My EAD was denied. What are my options?

If your H-4 EAD application is denied, carefully review the denial notice to understand the reasons for the denial. You may be able to file a motion to reopen or reconsider the decision, or you may be able to reapply if the reasons for the denial have been addressed. Consulting with an immigration attorney is highly recommended.

12. Can I get premium processing for an H-4 EAD?

Currently, premium processing is not available for H-4 EAD applications. You must rely on the standard processing times. However, this can change, so check the USCIS website for updates.

Navigating the complexities of immigration law can be daunting. This guide provides a comprehensive overview of the H-4 EAD process. However, always consult with an experienced immigration attorney for personalized advice tailored to your specific situation. Immigration laws and policies are subject to change, and professional guidance is crucial to ensure compliance and maximize your chances of a successful outcome.