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Editor’s Note: For information regarding the impact of COVID-19/Coronavirs on H4 visa holders in the U.S. see the following articles:
An H4 Visa is a Visa issued to dependents (spouses or children under 21 years of age) of H1B visa holders. Spouses of H1B visa holders are not allowed to work with just an H4 Visa. There is, however, an option to obtain an EAD which allows you to work with an H4 visa.
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H1B visas are meant for people who have a degree and want to work in the United States. The visa allows them to get a job in the same field as their degree.
Meanwhile, the H4 visa is something that allows you to bring your family to the States. Simply put, if you are someone who owns an H1B visa, and have a wife/husband and children under the age of 21, you can take them to the U.S. through an H4 visa. They’ll be under the dependent category. During the application interview, both the spouse and the children will be asked various questions, which will tell the U.S. authorities why you are applying for the H4 visa in the first place.
People in the United States under H4 can stay in the country for the whole period of validity of the H1B visa held by the husband/wife. During your stay, you have the right to open a bank account, go to school, and even get a driver’s license. On top of that, you can work as well, but that depends on whether you can obtain an H4 EAD, respectively an Employment Authorization Document.
So, in this situation, the H1B visa holder is the principal applicant, and the H4 visa holders will depend on them, and the spouse’s visa period.
The H4 EAD rule was implemented back in 2015 because the United States wanted to retain skilled foreign workers. They also wanted to lower the number of interruptions to U.S. businesses, as they were causing foreigners to not want to stay in the States anymore. Therefore, the H4 EAD was made with the thought of giving some peace of mind to H1B visa holders, as well as their families. This is helpful while these families are trying to transition to lawful permanent resident status. Not to mention that the rule can decrease the economic burdens that these families used to deal with.
Family members that want to obtain an H4 EAD have to file Form I-765.
In order to apply for the H4 visa, you need to know the right time to do so – otherwise, you may not be able to go to the U.S. with your spouse. That being said, once your wife or husband applies for an immigrant visa and has the petition approved, you can apply for an immigrant visa on that same petition. Children under the age of 21 who aren’t yet married can also apply on the petition.
Similar to your spouse, you will have to deal with the whole application process. This means that, just like your wife or husband, you will have to pay certain fees, complete all the necessary forms, go to an interview, and undergo a medical examination as well.
Once you’re done with everything necessary, you will have to check the status of your visa petition. This can be done on the USCIS (U.S. Citizenship and Immigration Services) website.
If you get your visa approved, then the good news is that you can legally stay in the U.S. until your spouse still owns the H1B visa. If you want, you can also apply for a change of status while in the U.S., and switch to an H1B yourself. Another thing you can do for a change of status is to apply for a Green card.
It’s best to apply for the H4 visa as soon as you can, preferably as soon as the H1B visa petition of your spouse gets approved. The reason is the fact that processing times vary, usually depending on the country. But at the end of the day, you will depend on the main visa holder, respectively the H1B visa spouse. So, it’s to be expected that your visa processing will take as long as it takes for their visa to be processed. Meanwhile, if you are applying separately, it will be less certain how long it will take for your H4 visa to be approved. It all depends on the U.S. Embassy, and how much work they have to do.
Historically, spouses of H1B visa holders were not allowed to work in the U.S.
The U.S. Citizenship and Immigration Services (USCIS) issued immediate family members an H4 visa, which only allows them to lawfully live in the U.S. with an H1B visa holder.
On February 24, 2015, it was announced by USCIS that this rule would change beginning May 26, 2015. The Department of Homeland Security (DHS) would start issuing Employment Authorization Documents (EAD) to eligible H4 visa holders. Holders of such an H4 visa EAD can now legally work or start a business in the U.S. as long as their spouse’s H1B visa is valid.
It’s important to note that, before 2015, you couldn’t obtain an H4 EAD. To be more specific, even if you owned an H4 visa through your significant other’s H1B visa, you were not allowed to work in the United States. You were only allowed to go to school, have a bank account, get a driver’s license, and some other benefits.
But in 2015, the H4 EAD rule was implemented. After the rule passed, those who were eligible for it could start applying for an Employment Authorization Document. Not long ago, in 2019, USCIS came with the suggestion of getting rid of the program. However, it’s still not certain whether their request will be accepted or not – it’s all still up for debate.
Later, in November, the U.S. Court of Appeals for the District of Columbia announced that the rule will not be abolished. H4 visa holders would still be allowed to apply for an EAD and be able to work in the United States under their visa status. Still, the judgment has then been passed back to a lower court.
If you have an EAD, you will not need any petition or sponsorship, or an LCA (Labor Condition Application). You will be able to work in just any field of the economy. Unlike your spouse, who has an H1B visa, you can pretty much work for any job that you want. You don’t have the same limitations as an H1B visa holder.
To apply for an H4 EAD, you need to first own an H4 visa. That means that you need to be the spouse of someone who owns an H1B visa or the child of the holder. If you are the child, then you must be under the age of 21, and not be married.
In addition to the ability to work once obtaining an EAD, there are a few other benefits to the EAD.
H4 visa holders who have an EAD can:
There are also no limits on the number of H4 EADs issued annually.
All you need to apply for the H4 EAD is to fill out the I-765 Application for Employment Authorization form. This form and all the required documents listed below must be submitted to the USCIS. Remember, you can only apply if you are eligible.
An application fee of $410 must be paid to the DHS before your application can be processed. Some people are exempted from paying this fee, however.
The following documents may be required to be submitted with your Form I-765 as supporting evidence:
Your Form I-765 cannot be filed electronically and must be mailed, together with the required fees and supporting evidence to the relevant address.
Take note that you can file your Form I-539 with your Form I-765, but your Form I-765 will not be processed until your Form I-539 has been adjudicated. Take note further that your H4 status must also first be determined before the 90-day adjudication period for Form I-765 (filed together with Form I-539) starts.
Form I-765 can be filed for a renewal of your EAD. This can be done up to 120 days before your EAD’s expiration date.
You can track your H4 EAD with this tracker.
As soon as you have been issued your I-765 and received your EAD, you can start working.
Some people debate applying for an H1B visa or an H4 visa. With the easier application process and benefits of the H4 visa, it is usually what people end up choosing.
For an H4 visa holder who wishes to start work right away, you may be wondering what the processing time for an EAD would be. Processing times vary by service center which means there is no exact time.
No two EAD cases are the same, but most EAD applicants will get their petition processed within 90 days of submitting their application.
You should note that you cannot apply for an EAD until you are already living within the U.S., so if you would like to work right away, you should submit your application right when you get settled into your new home.
After USCIS announced that H4 visa holders can apply for EAD, there was a large number of H4 visa holders who jumped at the opportunity to work. This caused a threat to the employment of U.S. citizens.
An organization called Save Jobs USA (Save Jobs) decided to file a lawsuit against the DHS. The lawsuit claimed the DHS did not have the authority to grant EADs to H4 visa holders and that the new rule did not protect U.S. workers. This lawsuit was filed on April 23, 2015. Save Jobs USA’s case was initially dismissed by the Federal District Court, but this decision has been taken on appeal.
In the meantime, the Trump Administration has also been involved in the decisions regarding H4 visa EAD’s. Due to Trump Executive Order 13788 “Buy American, Hire American” (EO), the DHS has had to reconsider their position on the H4 visa EAD to align itself with the EO.
The Trump Administration has, on various occasions, requested a stay in the proceedings, meaning that the case should be held in abeyance, so that alignment with the executive order can be considered before the DHS can state its case further. On June 23, 2017, the appeals court granted a stay and asked Save Jobs and the DHS to file motions stating how they would like to further deal with the case.
On December 22, 2017, the DHS and Save Jobs filed motions in court. Importantly, the DHS asked that the lawsuit be held in abeyance, as they are in the process of implementing the removal of the H4 EAD. Save Jobs wanted the court process to continue as, according to them, implementing this will take years, and in the meantime, H4 visa EAD’s continue to be valid and issued. The court decided that the case should be held in abeyance and that DHS should keep the court updated on its progress on implementing the removal of H4 EAD’s.
The removal of H4 visa EAD has officially been included in the Spring 2018 Regulatory Agenda (set to be in June 2018) titled “Removing H4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”. What this agenda item basically said was that the DHS intends to amend the rule regarding H4 EAD’s and that they will possibly remove this EAD in line with the EO.
The public will have a chance to comment on the proposed rule during the notice period.
Until this new rule is officially published and implemented, there will be uncertainty on whether current H4 visa EAD holders will be able to continue working in the U.S. It will also be a good idea to have a backup plan ready. Until this rule is published, H4 visa holders can still apply for EAD.
For updates, continue checking this website.
Below is a general overview of the latest H$ EAD news. For a more in-depth look at all of the news surrounding the H4 EAD lawsuit, click here.
June 2019 – As of June 5, there are no updates regarding the H4 EAD lawsuit. Check back here regularly for the latest H4 EAD new.
May 2019 – As of May 2019, there are no new major updates to H4 EAD matters relating to the courts, but the H4 EAD rule removal remains part of the Spring 2019 Regulatory Agenda. In the House of Representatives, however, Rep Eshoo re-introduced H4 EAD Protection Act bill on May 29.
January 2019 – On January 16, SAVE Jobs USA filed a replacement opening brief that reiterated it’s previous argument points (that DHS never had the authority to allow H4 visa holders the right to work and that H4 visa holders are taking away job opportunities from American workers).
On January 18, DHS filed a motion to put stay on the previously set deadlines to deliver a rule on the H4 workers, as the department lacks funding as a result of the government shutdown.
December 2018 – On December 21, California Congresswomen Eshoo and Lofgren introduced the “H-4 Employment Protection Act of 2018” (H.R.7150), which aims to protect H4 EAD workers from having their work permits revoked, but the likelihood of the Resolution becoming law is very low at this time, even with a Democratic majority in Congress.
October 2018 – On October 29, DHS published an update to their rule making agenda noting the benefits of the H4 EAD rule removal as:
“DHS anticipates that there would be two primary impacts that DHS can estimate and quantify: the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees’ EADs are terminated. Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.”
September 2018 – In September, DHS’s progress with determining the fate of the H4 EAD program appeared to be nearing its end. The Trump administration reported that it is expected to give notices of proposed rulemaking (NPRM) by the year’s end. During this period, DHS will take comments from the public to consider as it decided its final rule.
Unhappy with how long the process has taken. SAVE JOBS USA filed a motion asking the court to proceed to oral argument and briefing as soon as possible on September 11.
For future H4 EAD news, check back here in the weeks to come.
A more detailed timeline of the H4 EAD Lawsuit can be found here.
July 2018 – In June 2018, the Trump Administration’s Department of Homeland Security missed, for a second time, the deadline to announce its position on whether spouses of H1B workers will be allowed to continue working in the U.S.
There is currently a proposed rule change on H4 EAD published as a to-do in the Government’s Spring agenda. The proposal seeks to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.
The H4 EAD program, introduced by the Obama Administration, gives H4 dependents work authorization in the U.S. Since the start of the Trump Administration, fears have run high that the program would be eliminated. At present, the program remains intact, but for how long, no one can say.
The recently missed deadline is not imposed by the U.S. government upon itself, but rather a 90-day timeframe in an ongoing court case (Save Jobs USA versus Department of Homeland Security) that challenges the H4 EAD program.
Understandably, H4 visa holders are concerned about their futures and wonder if their employment opportunities will be revoked
Working in the U.S. on an H4 visa isn’t necessarily easy and the future of the H4 EAD program isn’t exactly clear at this time, but it’s not impossible and for the time being, it’s a great opportunity for the spouses of H1B visa holders to gain experience and earn and income in the U.S.
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