Earlier this year USCIS announced that the long-awaited H-4 EAD rule will go into effect on May 26, 2015. The full regulation was also published. We are still awaiting a FAQ from USCIS, which was promised in the spring. An MU Law FAQ is at the end of this blog post.
Under the new H-4 EAD rule, the H-4 spouse may obtain an EAD card in two instances. (1) Either the principal H-1B worker has to have had a PERM Application pending for at least one year or (2) the principal H-1B worker has to have an approved I-140.
H-4 spouses who meet one of the two conditions may file an I-765, Application for Employment Authorization. Ordinarily, I-765 Applications are approved in 90-120 days. Accordingly, H-4 spouses who qualify should be able to begin working in September 2015.
Musillo Unkenholt H-4 FAQ
Can I file before May 26, 2015?
No. The USCIS will not accept EAD applications until May 26, 2015.
How long will it take the USCIS to process the EAD Application?
Traditionally EAD Applications take 90-120 days until approval.
Can I work upon the filing of the EAD Application?
No. The EAD must be approved?
Who qualifies for the new H-4 EAD card?
Certain H-4 spouses may file for the new H-4 EAD. Children who hold H-4 status are ineligible for the EAD.
Which H-4 spouses may file for an EAD?
In order to decide if you qualify for the H-4, we must look to the underlying H-1B status holder. The USCIS elected to apply the rule first set forth in Section 106 of AC21. The H-1B worker must either:
A. Hold an approved I-140, Petition for Alien Worker. The approved I-140 does not need to be from his present employer; or
B. Have a priority date that is at least one year old. A priority date can be established by the filing of a PERM Application or a Form I-140.
May an H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B) one year has passed since the filing of a PERM or I-140?
No. The USCIS looks to the H-1B worker to meet A or B, above. It is irrelevant if the H-4 meets A or B.
Are there any limitations on the work that I can perform on an H-4 EAD? For instance, is there a prevailing wage? Am I limited only to certain types of jobs?
No. There are no such limitations. You can work for any employer, at any rate (above minimum wage), and in any occupation.
What should I do if I want to file an H-4 EAD?
EAD Applications do not require an attorney’s assistance, although many people find it helpful to have an attorney assist in the process. If you would like MU Law to help, please contact us.
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