Getting Work Authorisation When Your Spouse Has an H-1B Visa

Created: Mar 20, 2024 | Updated: Mar 20, 2024

The H-4 Employment Authorization Document is a beacon of hope for families trying to build their dreams in the United States. If your spouse is part of the H-1B visa program, you, as an H-4 dependent spouse, now have a chance to contribute to your family's success and the U.S. economy. This guide explains the process of obtaining work authorization through the H-4 EAD, ensuring you're equipped to make informed decisions every step of the way.

We lay out a clear roadmap of the application process, including essential forms, required documents, and the strategic timing of your application. Plus, we highlight the significance of certified translations for non-English documents, ensuring your application meets the USCIS standards.

What is an Employment Authorisation Document?

The H-4 Employment Authorisation Document (EAD) is a work permit issued by the United States Citizenship and Immigration Services (USCIS) to certain H-4 dependent spouses of H-1B visa holders. The H-1B visa allows U.S. employers to employ foreign workers in speciality occupations temporarily, and the H-4 visa is issued to the immediate family members (spouses and children under 21) of H-1B visa holders. This means that if you are in the U.S. on an H-4 visa and your spouse is an H-1B visa holder, you can get an H-4 EAD which allows you to work in the U.S. while you are there.

The H-4 EAD program was implemented to help alleviate the economic burden on families of H-1B visa holders waiting for green cards, allowing them to contribute to their household income and the U.S. economy. It also provides the flexibility for the EAD holder to pursue their career or start a business without being tied to a specific employer, unlike the H-1B visa. It recognises the long wait times for employment-based green cards, especially for nationals from countries with high demand and significant backlogs.

Eligibility Criteria for an H-4 EAD

Not all H-4 visa holders are eligible for an Employment Authorisation Document. Eligibility is limited to H-4 dependent spouses of H-1B visa holders who are on the path to obtaining lawful permanent resident status through employment. Specifically, your spouse with the H-1B visa must have:

An approved Form I-140, Immigrant Petition for Alien Worker, indicating that they are in line for a green card or have been granted an extension of their H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). This extension may be granted if:

-Their green card process was started at least 365 days before reaching the six-year limit on H-1B status, and

-They are waiting for a green card due to limitations from their country.

How to Apply for an Employment Authorisation Document

Fill out the Application Form

If you are eligible, you can apply for the EAD by filing Form I-765, Application for Employment Authorization, from the USCIS website, using the instructions for Form I-765.

Pay the Application Fees

Ensure your application includes the correct filing fee or proof of fee exemption, if applicable. Applications without the required fee or signature will be rejected. If you're filing Form I-765 with Form I-485 (Adjustment of Status), indicate your eligibility category as (c)(9) and only pay the Form I-485 fee. Applications misfiled under category (c)(26) with an I-485 will be rejected. The fees for Form I-765 are:

Paper-filed - $520
Online filed - $470

Gather the Supporting Documents

The documents needed for your application for an EAD include:

Proof of H-4 Status: A copy of your Form I-797 approval notice for Form I-539 or your Form I-94 record.
Photo Identification: A copy of your last EAD (if applicable), passport biometric page, photo ID birth certificate, foreign consulate visa, or national ID with a photo.
Proof of Relationship: A copy of your marriage certificate to the H-1B visa holder.
Your H-1B spouses approved Form I-140, Immigrant Petition for Alien Worker, or their proof of being granted H-1B status under sections 106(a) and (b) of the AC21 Act.
Photos for Card Production: Two recent 2x2 inch passport-style colour photographs of yourself.

If you submit any documents in a foreign language, they have to be accompanied by a full English-language certified translation. The translator must also attach a certification that proves that they are competent to translate from the foreign language into English. Translayte ensures that your translated documents are accurate, professional, and compliant with USCIS requirements. Our USCIS-certified translation services are quick and easy to use. Just a few steps and you have your translations in no time.

Review Your Application and Submit

Double-check your application and submit the Form I-765 package to the designated filing address:

Filing Form I-765 as a Standalone Application: If you just want a work permit and you're already on an H-4 visa, you should send your Form I-765 to the Lockbox address on the USCIS website's page for Form I-765 filing addresses.
Filing Form I-765 Together with Form I-539: If you're applying to either get into H-4 status or extend your current H-4 visa, and you want a work permit, send both your work permit application (Form I-765) and your H-4 status application (Form I-539) to the same Lockbox address indicated on the USCIS website.
Filing Form I-765 with Form I-129 and Form I-539: If your spouse is applying for H-1B status, you're applying for H-4 status, and you also want a work permit, send all your forms (your spouse's H-1B application, your H-4 application, and your work permit application) to the service centre that deals with the H-1B form. You'll find the right address on the USCIS website, on the page for Form I-129 filing addresses.

Receive Your Employment Authorisation Document Card

The application process can take up to 90 days to complete. If your application is approved, you will receive your Employment Authorisation Document card in the mail. The H-4 EAD allows you to work in any job, for any employer in the U.S., without needing sponsorship.

Validity of Employment Authorisation

1. You're not allowed to work until USCIS approves your Form I-765 EAD application. Once approved, your EAD will have an expiration date that matches the expiration date on your most recent Form I-94, which shows your status as an H-4 non-immigrant.

2. You can work up to the expiration date on your EAD. If you want to keep working after your EAD expires, you need to apply for a renewal. You can do this by submitting a new Form I-765. You can't apply for a renewal more than 180 days (about 6 months) before your current EAD expires.

3. You might get an automatic extension of your work authorisation if:

You apply for an EAD renewal before your current one expires.
Your Form I-94 showing H-4 status hasn't expired.

The automatic extension lasts until the earliest of these events:

Your Form I-94 expires.
USCIS decides on your EAD renewal application.
180 days after your current EAD expires.

4. If you're in the period of automatic extension, you can show the following documents to employers :

Your unexpired Form I-94, showing H-4 status.
Form I-797C, indicating you've filed for EAD renewal on time under (c)(26).
Your expired EAD, as long as it’s under the same category (c)(26).

FAQs

How Long Does it Take for EAD to be Approved?

The application process for an Employment Authorisation Document usually takes up to 90 days.

What Happens if EAD is Rejected?

Having your application rejected simply means that you made a filing error, and USCIS can't review the application until you've fixed it. If your application was denied, you can submit a motion to reopen or a motion to reconsider with the office that made the decision.

What can you do with your EAD card?

With an Employment Authorisation Document card, you can prove that you are eligible to work legally in the U.S. The card allows you to work alongside your partner who is in the U.S. on a work visa.

Can I Leave the Country After Applying for EAD?

Yes, you can leave the country after applying for an Employment Authorization Document. Your ability to leave and then re-enter the United States depends on your current visa status, not the pending EAD application. Ensure that you have a valid visa to return to the U.S. If you are on an H-4 visa, for instance, make sure your visa stamp is valid for re-entry. If your visa has expired, you may need to apply for a new visa at a U.S. consulate abroad before returning.

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