Applying for an EAD while in H-4 Status

Overview

Individuals in H-4 status normally do not have employment authorization. However, spouses in H-4 status (not dependent children) are  eligible for an Employment Authorization Document (EAD) under elegibility category "(c)(26)" as soon as the primary status holder in H-1B status:

  1. Is the beneficiary of an approved Form I-140 (Immigrant Petition), or
  2. Has been granted an extension of his or her H-1B status beyond the standard six-year limit of H-1B eligibility based on a pending employment-based green card application.

Unless and until these narrowly defined criteria are met, spouses in H-4 status do not qualfy for an EAD under eligibility category "(c)(26)." Many individuals in H-4 status are not eligible for an EAD on this basis.

How to Apply

This information is provided as a courtesy and does not constitute legal advice. FSIS staff cannot complete/prepare the I-765 on your behalf. Form I-765 is a personal application and FSIS cannot provide you with more specific guidance or advice on how to complete it. If, after reviewing the information below, you have further questions about what how to respond to a particular question on the Form I-765, please consult an immigration attorney.

To apply for an EAD, eligible spouses in H-4 status must file a Form I-765 and pay a filing fee. Please review the USCIS information on how to apply for an EAD for a process overview as well as a list of FAQs and an overview of required support documents. In general, the following support documents should be included:

  • Copy of passport
  • Marriage license (with English translation, if applicable)
  • Proof that the H-1B status holder is currently in status, such as
    • H-1B Approval Notice
    • I-94 record
    • Three most recent paystubs
  • Proof that the H-4 status holder is currently in status, such as
    • H-4 Approval Notice
    • I-94 record
  • Proof of eligibility for the EAD
    • Copy of I-140 Approval, OR
    • Proof of H-1B status approval beyond the sixth year.

Individuals in H-4 status may not begin employment until USCIS has approved the application and the EAD has been received by the applicant.

EAD Extensions

The expiration date of the EAD will often coincide with the validity of one’s approved H-4 status. When filing Form I-539 to request an extension of one’s H-4 status, a new I-765 may be filed at the same time. To avoid future gaps in employment eligibility – with limited exceptions, one’s EAD has to be valid in order for H-4 spouses to work – it is important that future status extension requests are filed as early as possible. 

Because H-4 status extension requests are dependent on status extensions for the H-1B status holder, H-1B status extension requests should be filed as early as possible. USCIS will accept H-1B extension requests up to six months prior to the requested start date.  Note that individuals in H-1B status who are the beneficiaries of a pending H-1B extension petition may continue to work for a period of 240 days while their extension petition is pending with USCIS.  However, H-4 spouses who are employed on the basis of an EAD do not have this benefit and must stop working  when their EAD expires, unless they are covered by the 11/12/2021 policy guidance referenced below. Therefore, it is strongly recommended that H-1B extensions be filed five to six months prior to the requested extension start date so that EAD requests for H-4 spouses can be adjudicated in time.

Effective 11/12/2021, USCIS issued new policy guidance that confirms that qualifying H-4 dependent spouses whose status continues to be valid beyond the expiration date of their EAD are eligible for an automatic extension of their EAD. Upon the timely filing of an EAD extension request (Form I-765), their employment authorization will automatically be extended for a period of 180 days OR until the date their H-4 status expires, whichever is shorter.

Note: USCIS issued a Temporary Final Rule (TFR) on 5/4/2022 to change the automatic extension period for certain EAD categories from 180 days to 540 days, for extension requests filed on or before 10/26/2023. Individuals who filed their EAD extension requests before 5/4/2022 are also covered by this new TFR. Note that USCIS will not be issuing new I-797 receipt notices to affected individuals. I-797 receipt notices for affected categories that refer to a 180-day extension period will still meet the regulatory requirement for employment authorization.

Any and all H-1B petitions filed on behalf of the University of Michigan must be filed by the International Center (IC) on the Ann Arbor campus. As a courtesy, at the request of the H-4 spouse, the IC can include the Form I-539 and I-765 with the H-1B petition.
 

When to Apply

Spouses in H-4 status who are not yet eligible to apply for the EAD under the eligibility criteria should not file the I-765 until they can establish their eligibility. Spouses who will become eligible for an EAD based on an extension of the primary status holder's H-1B status beyond the sixth year of eligibility may file the Form I-765 together with their request for an extension (Form I-539) of their H-4 status. However, USCIS has indicated that it will only approve the I-765 once the I-539 has been approved.