Earlier this year USCISannounced that the long-awaitedH-4 EAD rule will go into effecton May 26, 2015. The fullregulation was also published. We are still awaiting a FAQ from USCIS, whichwas promised in the spring. An MU Law FAQis at the end of this blog post.
Under the new H-4 EADrule, 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 forat least one year or (2) the principal H-1B worker has to have an approvedI-140.
H-4 spouses who meet oneof the two conditions may file an I-765, Application for EmploymentAuthorization. Ordinarily, I-765 Applications are approved in 90-120days. Accordingly, H-4 spouses whoqualify should be able to begin working in September 2015.
Musillo Unkenholt H-4 FAQ
Can I file before May26, 2015?
No. The USCIS will not accept EAD applicationsuntil May 26, 2015.
How long will it takethe USCIS to process the EAD Application?
Traditionally EADApplications take 90-120 days until approval.
Can I work upon thefiling of the EAD Application?
No. The EAD mustbe approved?
Who qualifies for thenew H-4 EAD card?
Certain H-4 spouses mayfile for the new H-4 EAD. Children who hold H-4 status are ineligible forthe EAD.
Which H-4 spouses mayfile for an EAD?
In order to decide ifyou qualify for the H-4, we must look to the underlying H-1B statusholder. The USCIS elected to apply the rule first set forth in Section106 of AC21. The H-1B worker must either:
A. Hold anapproved I-140, Petition for Alien Worker. The approved I-140 does notneed to be from his present employer; or
B. Have a prioritydate that is at least one year old. A priority date can be established bythe filing of a PERM Application or a Form I-140.
May an H-4 spouse filefor an EAD if the H-4 spouse holds (A) an approved I-140 or (B) one year haspassed since the filing of a PERM or I-140?
No. The USCISlooks to the H-1B worker to meet A or B, above. It is irrelevant if theH-4 meets A or B.
Are there anylimitations 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 nosuch limitations. You can work for any employer, at any rate (aboveminimum wage), and in any occupation.
What should I do if Iwant to file an H-4 EAD?
EAD Applications do notrequire an attorney’s assistance, although many people find it helpful to havean attorney assist in the process. If you would like MU Law to help,please contact us.
