H4 EAD Eligibility – Is i140 Approval Required?

H4 EAD eligibility: i140 is approved or H1B 7th year extension applied with PERM. H4 physically in US. Cannot be filed from India. Job offer not required.

Anil Gupta
  By Anil Gupta    Updated  12 Jun, 20


You can get an H4 EAD work permit if you are currently in the US on H4 status with your H1B spouse.

  • H4 EAD does not require sponsorship and no biometrics either.
  • You can apply SSN along with your EAD card.

You can use this step by step H4 EAD eligibility checker test to find if you fulfill the H4EAD i765 application requirements. Your answers to simple questions will decide if you fulfill all USCIS requirements for H4 EAD.

Check My H4 EAD Eligibility



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H4 EAD USCIS Rules

As per the official USCIS rule for H4 wife or husband, you are eligible to work in the USA if H1B spouse can fulfill any one of these two criteria:

#1 H1B Spouse has I140 Approved OR

The approved i140 can be from any past or current H1B employer.

  • Just make sure that i-140 approval has not been revoked by USCIS for fraud, misrepresentation, or errors.
  • If the previous i140 has been withdrawn by the old employer but has not been revoked, you can still use it for filing the H4 EAD application.

The i140 category is not relevant for filing H4 EAD. All three employment-based i-140 categories like EB1, EB2, and EB3 are eligible.

#2 H1B Has been Extended Beyond 6 Year Quota

You can file H4 EAD even if your H1B i140 is not approved yet using AC21 rule by USCIS.

This is possible when H1B has already spent 6 years in the US but is waiting for PERM approval.

H1B can work beyond 6 years in USA by filing 1 year extensions if

  • PERM is Pending for 365+ days or
  • PERM is Approved or
  • PERM Audit is Pending for more than 365 days or
  • i140 is pending after PERM approval

The pending or approved PERM allows you to file H1B extensions in the 7th, 8th, and further years.

The H1B spouse should have worked in the US for at-least 6 years in the USA using an H1B visa. The total time should be added including vacation time outside the USA. Do NOT add the time when the person was on any other visa like F1, L1, etc in the USA either before H1B or between H1B time.

FAQ

Can I file H4 EAD from India?

You cannot file an H4 EAD application from India.

You should be physically present in the USA at the time of filing the H4 EAD application.

Can I travel out of US while H4 EAD is pending?

You can file an H4 EAD application and then travel outside the USA.

There is a chance of getting H4 EAD RFE if your travel but it can be managed by your family if they are in the US.

Can I file H4 EAD with Revoked I140?

You can file H4 EAD with revoked i140 as long as USCIS has not revoked it for fraud, misrepresentation or errors.

Can I file H4EAD with Old Employer’s i140?

You can file an H4 EAD application with an old employer’s approved i140.

It does not matter if you have changed jobs using H1B transfer after the i140 approval from a previous employer.

Can I file H4 EAD and i140 Concurrently?

You cannot file H4 and i140 concurrently.

Some attorneys do claim that H4 EAD and i140 can be filed concurrently but we do not know of a real-life case that has been filed.
Hence, we recommend waiting for i140 approval before filing the H4 EAD application.

The fastest option is to file i140 in premium and get approval within 15 days.

Is H4 child Eligible for H4 EAD?

H4 dependent child is not eligible for H4 EAD work authorization.

Do I need a Job offer for Applying H4 EAD?

There is no job offer required for applying H4 EAD card.

Is there any Quota for H4 EAD cards?

There is no quota for H4 EAD cards.

Anyone can apply and you will get an H4 EAD open work permit card if you are eligible.

Can I Open my Business or work from Home with H4 EAD card?

You can open a business or work from home with H4 EAD card.

Is H4 EAD affected by California AB5 Law?

California’s AB5 law is only asking companies to convert contractors to employees.

If an H4 EAD person is doing the work as a contractor and is doing it for multiple clients, then there should be no issue.

Can H4 EAD can work on both W2 and 1099?

H4 EAD can work on both W2 and 1099.

You can do stock trading, work at McDonald’s, start a new business, hire Americans or H1B, or another H4 EAD/L2 EAD in the USA.


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Anil Gupta
  By Anil Gupta           

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