Can H4 Visa Holders Work in the United States?

The H4 visa serves as a dependent visa, enabling spouses and children (under 21 years old) of H1B visa holders to reside and study within the United States.

However, numerous H4 visa holders often question whether they can engage in work within the US, particularly if they possess professional qualifications and skills.

This query doesn’t yield a simple answer, as its resolution hinges on several variables.

These factors encompass the standing of the H1B visa holder, the criteria for work authorization eligibility, and the durations it takes for application processing.

Image of H4 EAD
H4 EAD- H1B Spouses Can Now Work In America As Biden Reverses Trump’s Rule; Big Relief For H4 Visa Holders | photo courtesy | Twitter

 

This article will elucidate the present guidelines and regulations governing the employment rights of H4 visa holders, alongside recent advancements and challenges that might impact their prospects.

H4 EAD: Enabling Eligible H4 Visa Holders to Work

The H4 EAD (Employment Authorization Document) program represents the most prevalent avenue for H4 visa holders to acquire work authorization within the United States.

Introduced in 2015 during the Obama administration, this initiative allowed specific H4 visa holders to request a work permit, thus facilitating employment across various fields and occupations within the US.

The primary goal of this program was to alleviate the financial and personal difficulties faced by many H4 visa holders who underwent years of waiting as their spouses pursued green cards.

However, it’s worth noting that not all H4 visa holders meet the eligibility criteria for the H4 EAD program.

The prerequisites for eligibility criteria for the H4 EAD program

  • The H4 visa holder must be the spouse of an H1B visa holder; other dependents and children are ineligible.
  • The H1B visa holder must have an approved I-140 petition, the second stage in the employment-based green card process, or must have secured an extension of their H1B status beyond the standard six-year limit according to the AC21 (American Competitiveness in the Twenty-First Century Act) provisions.

Once these conditions are met, the H4 visa holder can submit Form I-765, the Application for Employment Authorization, to the United States Citizenship and Immigration Services (USCIS), along with the required supporting documentation and fees.

The present filing fee for Form I-765 is $410, with an additional $85 charged for biometric services.

The supporting documents include:

  • A duplicate of the ongoing Form I-797 approval notice for Form I-539, the Application to Extend/Change Nonimmigrant Status, or a duplicate of Form I-94, the Arrival/Departure Record, indicating admission or extension of stay as an H4 nonimmigrant.
  • A duplicate of a government-issued photo identification document, like a passport, birth certificate, or visa.
  • A duplicate of the marriage certificate or alternative legal evidence affirming the marital relationship with the H1B visa holder.
  • A duplicate of the I-140 petition approval notice (Form I-797) filed by the H1B visa holder or on their behalf, or copies of the passport, earlier Forms I-94, and current and earlier Forms I-797 for Form I-129, the Petition for a Nonimmigrant Worker, showcasing the extension of stay approval for the H1B visa holder under AC21 sections 106(a) and (b).

Upon the receipt and processing of the application by USCIS, an EAD card will be issued to eligible H4 visa holders. This card empowers them to work for any employer within the US.

The EAD card’s validity mirrors the underlying H4 status’s duration, which, in turn, hinges on the H1B visa holder’s status.

Consequently, any alterations or disruptions in the H1B visa holder’s status – such as employment termination, extension or renewal denial, or I-140 petition revocation – could impact the work authorization of the H4 visa holder.

Processing Time for H4 EADs

A significant challenge faced by numerous H4 visa holders applying for an EAD is the protracted processing duration enforced by USCIS.

According to USCIS data as of June 2023, the average processing period for Form I-765 within eligibility category ©(26), pertaining to H4 EAD applicants, ranged from 5.5 to 8.5 months across diverse service centers.

Consequently, numerous applicants endure several months of waiting before commencing or continuing their work in the US, especially when their preceding EADs have expired.

In response, USCIS has recently enacted policy and procedure modifications concerning spousal employment authorization applications.

In connection with a lawsuit initiated by a group of H4 and L2 visa holders (spouses of L1 intracompany transferees) against USCIS due to delays in EAD renewal, USCIS has consented to:

  • Automatically extend the validity of particular EADs by up to 180 days beyond their expiration date upon timely submission of a renewal application. This applies to EADs grounded in eligibility categories ©(26) and ©(35), encompassing H4 and L2 visa holders, among others. The automatic extension holds until the applicant’s Form I-94 expires or the renewal application is decided, whichever comes first.
  • Permit H4 and L2 visa holders to concurrently file their EAD renewal applications with their underlying status extension applications (Form I-539), regardless of whether the principal H1B or L1 visa holder submitted their extension application (Form I-129) concurrently or separately. This adjustment reduces processing times and prevents work authorization gaps for H4 and L2 visa holders.

These alterations are anticipated to benefit numerous H4 and L2 visa holders contending with work authorization troubles because of USCIS delays.

Nonetheless, these aren’t permanent solutions; their continuance hinges on lawsuit outcomes and USCIS discretion.

Consequently, H4 visa holders intending to submit EAD applications or renewals should strategically plan to file these at least six months ahead of their current EAD’s expiration.

Future Prospects for H4 EAD

A lingering obstacle for numerous H4 visa holders possessing or pursuing EADs pertains to the uncertainty surrounding the H4 EAD program’s future.

Ever since its initiation in 2015, the program has remained under constant threat of being revoked by the Trump administration, which contended that it lacked legal authorization and negatively impacted American workers.

In 2017, the Department of Homeland Security (DHS) signaled its intent to retract the H4 EAD rule as part of its regulatory agenda.

However, despite multiple postponements and deadlines, the proposed rule wasn’t ultimately enforced.

Meanwhile, Save Jobs USA, representing a group of American workers, initiated a lawsuit contesting the legality of the H4 EAD rule and striving to invalidate it.

The case has remained pending in federal courts for several years, involving various motions and appeals from both parties.

While the Trump administration backed the plaintiffs and urged the court to pause the case until it could issue a final rule rescinding the H4 EAD rule, the Biden administration reversed this stance in January 2023.

It retracted the proposed rule, signifying its endorsement of the program.

Although the Biden administration’s decision brought relief to numerous H4 visa holders and their advocates, affirming a positive move towards safeguarding their work rights and opportunities, it doesn’t guarantee the program’s survival.

The lawsuit remains ongoing and might potentially yield a court ruling against the H4 EAD rule.

Moreover, other legislative or administrative alterations could impact H4 visa holders’ work authorization eligibility or availability.

Consequently, while the current administration provides some optimism and relief for H4 visa holders aiming to work in the US, there remains a demand for more lasting and comprehensive resolutions that acknowledge and protect their potential contributions to the US economy and society.

Conclusion

The H4 visa facilitates dependent spouses and children of H1B visa holders to reside and study in the United States.

However, securing work as an H4 visa holder isn’t a straightforward endeavor, hinging on diverse factors such as the H1B visa holder’s status, eligibility criteria for work authorization, and application processing durations.

The principal channel for H4 visa holders to attain work authorization is through the H4 EAD program, introduced in 2015 but marked by several challenges and threats since its inception.

The Biden administration recently withdrew a rule seeking to revoke the program and executed changes to streamline the application or renewal process for eligible H4 visa holders.

Nonetheless, ambiguity persists concerning the program’s future and the overall work rights of H4 visa holders, subject to ongoing litigation and potential policy changes.

Thus, H4 visa holders aspiring to work within the US should remain cognizant of these concerns and strategize accordingly.

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