H4 Visas & EAD

[vizcard]

Gurus,

I have one quick question. I don't know this is the right place to post this question.
My employer is asking me to fill out the I-9 form with EAD information.
That means my status will change from H1 to EAD. My H1 is valid until Feb 2014.
Because I don't want to move on EAD but I applied for EAD for if emergencie comes.
Is it ok to fill out the I-9 form with EAD information that means that we are using EAD and status has been changed from H1B to EAD.
And employer is telling that they are not revoking my H1B and when ever I want to come on H1B status I can move.
Please help me regarding this issue.

Thanks in Advance Gurus

Thanks
Shreya

im not a guru but I'll try to answer your question.
1. Do you know what is their driver for moving you to EAD if they are keeping your H1 valid? I can't imagine there being a real valid reason one way or another.
2. By the letter of the law, I believe switching from H1 to EAD means you are "abandoning" your H status. I don't know how the mechanics work here. I suppose if the company does not inform the USCIS, then your H status still technically remains but is illegal by the letter of the law.

Its not the end of the world if you go on EAD and if you don't have other constraints (dependents on the way, etc.), its no problem. Remember to carry your EAD card when you travel overseas though. That's your only ticket in.

[gc2008]

Hello Gurus,
We have received our EADs recently. I have few questions regarding the usage.

Currently my wife is on H4 status.

Can she start working using her EAD ?
If so how to activate the EAD. Is there any procedure involved or does she just need to show the EAD to the employer?
Do we need to inform USCIS regarding her intention to use EAD?
Do we need to cancel her H4 once she starts using EAD?
If she switches to EAD, will that effect my status? Currently I am on H1B and want to continue on H1B until my GC is approved.

Thanks,

[gc2008]

1. Yes
2. She needs to fill out the I-9 with her prospective employer showing the EAD as employment authorization.
3. No
4. It usually is automatically void but I'm not sure of the mechanics on that. Perhaps talking to a lawyer may help here.
5. It won't affect your status since she is the derivative. It is similar to her going on F1 or B1. It doesn't change your status.

Thanks a lot for your answers. What if she just apply for SSN and decide not to work. Will she be on H4 status or AOS status.

[Spectator]

Thanks a lot for your answers. What if she just apply for SSN and decide not to work. Will she be on H4 status or AOS status.She will be in H4 status, assuming you are maintaining your H1B status.

[vizcard]

Thanks a lot for your answers. What if she just apply for SSN and decide not to work. Will she be on H4 status or AOS status.

SSN has nothing to do with immigration status. I believe you do need a SSN (or perhaps ITIN?) for employment (tax reasons)

[suninphx]

SSN has nothing to do with immigration status. I believe you do need a SSN (or perhaps ITIN?) for employment (tax reasons)

If she is on H4 then there is high chance that ITIN is already obtained. One needs to apply for SSN.

[gc2008]

She will be in H4 status, assuming you are maintaining your H1B status.

Thanks for your reply. Yes I am on H1


SSN has nothing to do with immigration status. I believe you do need a SSN (or perhaps ITIN?) for employment (tax reasons)

The reason why I asked is we still need to show EAD for her to get SSN. Showing EAD at SSN office might trigger USCIS and may assume she will be using EAD and hence may abaondon her H4 status.

[suninphx]

The reason why I asked is we still need to show EAD for her to get SSN. Showing EAD at SSN office might trigger USCIS and may assume she will be using EAD and hence may abaondon her H4 status.

Her status depends on your status.

[vizcard]

Thanks for your reply. Yes I am on H1



The reason why I asked is we still need to show EAD for her to get SSN. Showing EAD at SSN office might trigger USCIS and may assume she will be using EAD and hence may abaondon her H4 status.

Again, SSN is not immigration related. They will issue you a SSN if you are supposed to be in the country. The proof for that is an I-20 (F status), H1/ H4 (for H status), EAD (pending 485), etc etc. Once issued, you could go back to your home country and your SSN will still stay intact. Also, her status changing from H4 to EAD doesn't affect your status at all. See #5 from my earlier post to you.

In any case, you can take the H4 approval notice and get the SSN. The card will say "Cannot work without authorization" (or something like that). So when she starts working, she presents the SSN card and EAD to the employer. I assume the same will happen with an EAD card but perhaps someone else can provide that info.

Also, it would be amazing if the govt was that synced. The USCIS trip over themselves and the DOS and USCIS are not synced. Forget about the SSA.

[veni001]

Thanks for your reply. Yes I am on H1



The reason why I asked is we still need to show EAD for her to get SSN. Showing EAD at SSN office might trigger USCIS and may assume she will be using EAD and hence may abaondon her H4 status.

gc2008,

SSA will check for valid work authorization to issue SSN, no other communication between SSA and USCIS. Your wife's status(H4/AOS pending) will depends on whether she is using EAD to work/ primary applicant's status.

If you use EAD to work then it will automatically void her H4.
If she use her EAD to work then it will automatically void her H4.



Her status depends on your status.

Not necessarily, primary can stay on H1 derivative can use EAD to work and abandon H4.

[veni001]

Again, SSN is not immigration related. They will issue you a SSN if you are supposed to be in the country. The proof for that is an I-20 (F status), H1/ H4 (for H status), EAD (pending 485), etc etc. Once issued, you could go back to your home country and your SSN will still stay intact. Also, her status changing from H4 to EAD doesn't affect your status at all. See #5 from my earlier post to you.

In any case, you can take the H4 approval notice and get the SSN. The card will say "Cannot work without authorization" (or something like that). So when she starts working, she presents the SSN card and EAD to the employer. I assume the same will happen with an EAD card but perhaps someone else can provide that info.

Also, it would be amazing if the govt was that synced. The USCIS trip over themselves and the DOS and USCIS are not synced. Forget about the SSA.

vizcard,

SSA stopped issuing SSN to the individuals on H4 status.

[suninphx]

Not necessarily, primary can stay on H1 derivative can use EAD to work and abandon H4.

Veni- you are right. But reverse is not true and thats what I wanted to point out.

[qesehmk]

Veni

I thught they never issued SSN to H4 individuals (at least in last 8-10 years). This comes from first hand experience. My wife got her SSN only after she became eligible for EAD.
vizcard,

SSA stopped issuing SSN to the individuals on H4 status.

[gc2008]

gc2008,

SSA will check for valid work authorization to issue SSN, no other communication between SSA and USCIS. Your wife's status(H4/AOS pending) will depends on whether she is using EAD to work/ primary applicant's status.

If you use EAD to work then it will automatically void her H4.
If she use her EAD to work then it will automatically void her H4.






Actually she wanted to use her EAD as she got a job offer. But our attorney warned us not to use EAD. He said that she may have to leave US in case of my AOS denial. If my AOS is denied cant she go out of US and come back on H4 again as I will be maintaining my H1 status until I get GC?

When I asked my attorney, why there would be denial in my case as I don't have any complications and my case is pretty straight forward. He said that sometimes USCIS denies in error and if some body on EAD, then the person will become out of status right the moment AOS denied and reopening the case is like nightmare.
Because of this I am little worried whether she can use EAD or not.

[veni001]

Veni

I thught they never issued SSN to H4 individuals (at least in last 8-10 years). This comes from first hand experience. My wife got her SSN only after she became eligible for EAD.

Q,
Don't remember exactly how long ago, but SSA used to issue SSN to individuals with a tourist VISA!

[Kanmani]

Again, SSN is not immigration related. They will issue you a SSN if you are supposed to be in the country. The proof for that is an I-20 (F status), H1/ H4 (for H status), EAD (pending 485), etc etc. Once issued, you could go back to your home country and your SSN will still stay intact. Also, her status changing from H4 to EAD doesn't affect your status at all. See #5 from my earlier post to you.

In any case, you can take the H4 approval notice and get the SSN. The card will say "Cannot work without authorization" (or something like that). So when she starts working, she presents the SSN card and EAD to the employer. I assume the same will happen with an EAD card but perhaps someone else can provide that info.

Also, it would be amazing if the govt was that synced. The USCIS trip over themselves and the DOS and USCIS are not synced. Forget about the SSA.

In general H-4 holders are not eligible for SSN. If H4 holder needs the number for a valid non-work reason, SSA will issue one but marked to show he/she cannot work.

"If you are an Alien and not authorized to work in the U.S, then you must provide a document from a U.S. Federal, State, or local government agency that explains why you need a Social Security number and that you meet all the requirements for the U.S. government benefit."

[veni001]

Actually she wanted to use her EAD as she got a job offer. But our attorney warned us not to use EAD. He said that she may have to leave US in case of my AOS denial. If my AOS is denied cant she go out of US and come back on H4 again as I will be maintaining my H1 status until I get GC?

When I asked my attorney, why there would be denial in my case as I don't have any complications and my case is pretty straight forward. He said that sometimes USCIS denies in error and if some body on EAD, then the person will become out of status right the moment AOS denied and reopening the case is like nightmare.
Because of this I am little worried whether she can use EAD or not.

Your attorney is true, but like you said what is the likelihood of erroneous denial of your 485, probability close to zero. If she got an offer, i would say take it. In the worst case of AOS denial she can exit and re-enter on H4.

[soggadu]

Q,
Don't remember exactly how long ago, but SSA used to issue SSN to individuals with a tourist VISA!

In my knowledge... this might be pre 2000... since 2005 even if you are on F1 visa...you need to get a job to apply for SSN... B1/B2/H4... forget about it...

[qesehmk]

I am just thinking loud here. If AOS is not really a status then can't she maintain H4 and at the same time enjoy EAD? I feel quite confident that it should be possible.

Spec - any comments?


Actually she wanted to use her EAD as she got a job offer. But our attorney warned us not to use EAD. He said that she may have to leave US in case of my AOS denial. If my AOS is denied cant she go out of US and come back on H4 again as I will be maintaining my H1 status until I get GC?

When I asked my attorney, why there would be denial in my case as I don't have any complications and my case is pretty straight forward. He said that sometimes USCIS denies in error and if some body on EAD, then the person will become out of status right the moment AOS denied and reopening the case is like nightmare.
Because of this I am little worried whether she can use EAD or not.


Q,
Don't remember exactly how long ago, but SSA used to issue SSN to individuals with a tourist VISA!

Veni ... yes they used to. e.g. I received mine when I was a student in 2000. But my wife in 2004 didn't get one when she became F1.

[veni001]

In my knowledge... this might be pre 2000... since 2005 even if you are on F1 visa...you need to get a job to apply for SSN... B1/B2/H4... forget about it...

Agree must be before - 9/11




Veni ... yes they used to. e.g. I received mine when I was a student in 2000. But my wife in 2004 didn't get one when she became F1.

Same here, when i applied for SSN no need to show proof of on-campus employment either, for F-1.

[veni001]

I am just thinking loud here. If AOS is not really a status then can't she maintain H4 and at the same time enjoy EAD? I feel quite confident that it should be possible.

Spec - any comments?


Q,
No it is not possible! Please refer to Federal Register dated June 1,1999 (page 29210 (http://www.gpo.gov/fdsys/pkg/FR-1999-06-01/pdf/99-13759.pdf)).

"However, an alien who had chosen to work for a different employer during the period that his or her application for adjustment of status was pending would have thereby lost his or her H–1 or L– 1 nonimmigrant status. Thus, if the alien’s application for adjustment of status is denied, the alien would no longer be in a lawful status and would be subject to removal proceedings. In addition, a dependent family member who had chosen to engage in unrestricted employment while the application for adjustment of status was pending would lose his or her H–4 or L–2 nonimmigrant dependent status.
Therefore, if the principal’s application for adjustment of status is denied, such dependent family members would also not be in a lawful status and could not revert back to H–4 or L–2 dependent status."

[Spectator]

I am just thinking loud here. If AOS is not really a status then can't she maintain H4 and at the same time enjoy EAD? I feel quite confident that it should be possible.

Spec - any comments?AOS Pending is a period of Authorized Stay and the EAD is issued as as an incidental benefit.

A person in H4 status cannot work. Any work, authorized or not, means the person is no longer abiding by the conditions of H4 status.

When a person who is in H4 status uses the EAD as the basis for employment, they automatically lose H4 status and become AOS Pending.

Holding an EAD, but not using it for employment does not affect existing status. Using the EAD as the basis to obtain a SSN is not using the EAD as a basis for employment.

[vizcard]

AOS Pending is a period of Authorized Stay and the EAD is issued as as an incidental benefit.

A person in H4 status cannot work. Any work, authorized or not, means the person is no longer abiding by the conditions of H4 status.

When a person who is in H4 status uses the EAD as the basis for employment, they automatically lose H4 status and become AOS Pending.

Holding an EAD, but not using it for employment does not affect existing status. Using the EAD as the basis to obtain a SSN is not using the EAD as a basis for employment.

100% true.

From a practical standpoint though, how does the USCIS know that someone has used EAD for employment ?

(This question is purely for my educational purposes. NOTE TO OTHER POSTERS - DO NOT consider this as an option to "bend" the rules).

[qesehmk]

Veni / Spec

Thank you. That settles it. However talk about topic for advocacy!

What does the status have anything to do with ability to work? Why not decouple them?

A person can have any status - but as long as the person has a valid eAD then let the person work.

Q,
No it is not possible! Please refer to Federal Register dated June 1,1999 (page 29210 (http://www.gpo.gov/fdsys/pkg/FR-1999-06-01/pdf/99-13759.pdf)).

"However, an alien who had chosen to work for a different employer during the period that his or her application for adjustment of status was pending would have thereby lost his or her H–1 or L– 1 nonimmigrant status. Thus, if the alien’s application for adjustment of status is denied, the alien would no longer be in a lawful status and would be subject to removal proceedings. In addition, a dependent family member who had chosen to engage in unrestricted employment while the application for adjustment of status was pending would lose his or her H–4 or L–2 nonimmigrant dependent status.
Therefore, if the principal’s application for adjustment of status is denied, such dependent family members would also not be in a lawful status and could not revert back to H–4 or L–2 dependent status."


AOS Pending is a period of Authorized Stay and the EAD is issued as as an incidental benefit.

A person in H4 status cannot work. Any work, authorized or not, means the person is no longer abiding by the conditions of H4 status.

When a person who is in H4 status uses the EAD as the basis for employment, they automatically lose H4 status and become AOS Pending.

Holding an EAD, but not using it for employment does not affect existing status. Using the EAD as the basis to obtain a SSN is not using the EAD as a basis for employment.

[veni001]

100% true.

From a practical standpoint though, how does the USCIS know that someone has used EAD for employment ?

(This question is purely for my educational purposes. NOTE TO OTHER POSTERS - DO NOT consider this as an option to "bend" the rules).

Technically No but if they chose to, then they can find out from SSA/IRS.

[Kanmani]

100% true.

From a practical standpoint though, how does the USCIS know that someone has used EAD for employment ?

(This question is purely for my educational purposes. NOTE TO OTHER POSTERS - DO NOT consider this as an option to "bend" the rules).


Technically No but if they chose to, then they can find out from SSA/IRS.

Every Employer must submit Form I-9 while hiring and employing workers for employment in the United States. Won't USCIS make a note out of I-9 that H-4 holder has taken an employment?

[suninphx]

Every Employer must submit Form I-9 while hiring and employing workers for employment in the United States. Won't USCIS make a note out of I-9 that H-4 holder has taken an employment?

AFAIK, the Employer is not required to submit I-9 form to USCIS but they must maintain that record for all employees. Here is the link:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31b3ab0a43b5d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1 RCRD

[fedexfan]

It doesn't mean anything. By rule, one can be approved as long as one is current. So the USCIS is fully justified in approving cases that are current regardless of PD (looks like RD is the critical date more than PD). Retrogessing is a mechanism that CO is using to not only control usage of visa numbers but also to give GCs to the earliest PDs.

I think people should be thankful that they got to apply for EAD rather than focus on missing out on GC.
Hi Vizcard,
Does that mean applicants can still expect EAD to be processed even though there may be retrogression next bulletin? My PD is Nov 2008, and can I expect my EAD to be processed even though the VB retrogresses to Aug 2007?

Regards..

[Pundit Arjun]

Hi fedexfan,

If you have filed an EAD application along with your 485, Yes you would get an EAD irrespective of the date movements.


Hi Vizcard,
Does that mean applicants can still expect EAD to be processed even though there may be retrogression next bulletin? My PD is Nov 2008, and can I expect my EAD to be processed even though the VB retrogresses to Aug 2007?

Regards..

[Kanmani]

AFAIK, the Employer is not required to submit I-9 form to USCIS but they must maintain that record for all employees. Here is the link:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31b3ab0a43b5d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1 RCRD

Thank you . This makes sense.

[vizcard]

Hi Vizcard,
Does that mean applicants can still expect EAD to be processed even though there may be retrogression next bulletin? My PD is Nov 2008, and can I expect my EAD to be processed even though the VB retrogresses to Aug 2007?

Regards..



Hi fedexfan,

If you have filed an EAD application along with your 485, Yes you would get an EAD irrespective of the date movements.

Fedexfan - As arjun points out, you will get EAD regardless.

EAD / AP do not have limits or quotas. It is a benefit you get when you file the 485 (assuming you also file the EAD/AP forms).

[fastcz84]

Hello all,
I have some very naive questions, so please pardon my ignorance. I did some research on google and other forums, but could not get appropriate answers. In almost all forums everyone is talking in detail about their status, and where they are currently and what they need to do. I want to know the basics.

First, my profile -

Current Visa - H-1B since Oct-2009 (Came to US in 2007 on F-1 VISA)
Current Spouse Visa - H4 since Dec 2010.
Country of Origin - India
Currently both in US.

My company will be starting my Green Card processing from October 2013.

I have some questions, for planning my spouses education and exploring other options.
I may or may not understand the order of applications we need to fill. My questions are in order of applications to be filled for Green Card. Correct me if am wrong

1. File Labor petition - How long does labor petition takes to get approved (general idea)?
2. File Adjustment of Status (I-485) - Is this only after labor petition is approved?
3. Concurrent Filing - Is this about applying for EAD card for myself AS WELL AS my spouse concurrently with filing of I-485? Can i get EAD approval before I-485 is approved? How long does it take to get EAD card, from START OF GREEN CARD PROCESS (including labor petition, etc.)?
4. I suppose I-485 approval takes some 6-10,12 years depending on EB2 or EB3 category -Can me and my spouse work using EAD card until I-485 is approved?
5. Whats up with EAD card and traveling to India and back? I know its related to Advance Parole, but would like clarification on this topic

Thanks to anyone and everyone who reply to these questions and help me plan accordingly!

[Spectator]

Hello all,
I have some very naive questions, so please pardon my ignorance. I did some research on google and other forums, but could not get appropriate answers. In almost all forums everyone is talking in detail about their status, and where they are currently and what they need to do. I want to know the basics.

First, my profile -

Current Visa - H-1B since Oct-2009 (Came to US in 2007 on F-1 VISA)
Current Spouse Visa - H4 since Dec 2010.
Country of Origin - India
Currently both in US.

My company will be starting my Green Card processing from October 2013.

I have some questions, for planning my spouses education and exploring other options.
I may or may not understand the order of applications we need to fill. My questions are in order of applications to be filled for Green Card. Correct me if am wrong

1. File Labor petition - How long does labor petition takes to get approved (general idea)?
2. File Adjustment of Status (I-485) - Is this only after labor petition is approved?
3. Concurrent Filing - Is this about applying for EAD card for myself AS WELL AS my spouse concurrently with filing of I-485? Can i get EAD approval before I-485 is approved? How long does it take to get EAD card, from START OF GREEN CARD PROCESS (including labor petition, etc.)?
4. I suppose I-485 approval takes some 6-10,12 years depending on EB2 or EB3 category -Can me and my spouse work using EAD card until I-485 is approved?
5. Whats up with EAD card and traveling to India and back? I know its related to Advance Parole, but would like clarification on this topic

Thanks to anyone and everyone who reply to these questions and help me plan accordingly!As I understand the process:

1. Pre PERM submission activities

Obtain Prevailing Wage, advertising, interviewing, cooling off period etc - 4-6 months.

2. PERM submission

3 months for approval from receipt if it doesn't go into Audit. 6 months if audited and 1 year plus if Supervised Recruitment is ordered. Others can probably give better estimates.

The date that the PERM is received by DOL is your Priority Date.

3. I-140 submission

Once a PERM is approved, your sponsoring Employer can submit an I-140 petition on your behalf. It can be Premium Processed for an additional fee.

Assuming no RFE, a PP case can be approved in 15 days or less. A regularly processed I-140 might take 4-6 months.

Once the I-140 is approved, unless the I-140 is later revoked for fraud or misrepresentation, then you may use the PD for any future EB1 - EB3 application.

4. I-485 / Advance Parole / EAD

If your PD is Current at the time your I-140 is submitted, you can also submit the I-485/AP/EAD package at the same time. That will not be the case for you. EAD/AP can take 3 months to be issued after the application is received.

Otherwise, the I-485/AP/EAD may not be applied for until the PD becomes Current (Current means the PD is earlier than the Cut Off Date published in the Visa Bulletin).

For EB2-India, you might be waiting 5-8 years from your PD

For EB3-India, you might expect a wait of 15-25 years.

These timelines would change if any significant immigration legislation, such as CIR was passed.

Maintaining Non Immigrant Status

Until you have an EAD, you must maintain a valid non-immigrant status. If your spouse wishes to remain in H4 status, that would be H1B.

Once your PERM is at least 365 days old (either pending or approved), you would be entitled to 1 year extensions of your H1B beyond the normal 6 year maximum.

Once your I-140 is approved (and remains so), as long as your PD is not Current, you would be entitled to extensions of up to 3 years of your H1B beyond the 6 year maximum.

H4

Until they have an EAD, if your spouse remains in H4 status (i.e. physically present in the USA), your wife may not accept employment of any kind, including working on-line for a foreign Company. It does not matter where the money is paid.

An H4 may only take volunteer jobs. A volunteer job is one where NO person would EVER be paid for the activity.

Working for free, or for other considerations is still defined as employment, if another person might be paid for that work.

Realistically, to work, your spouse would have to obtain their own non-immigrant status that includes Employment Authorisation.

An H4 may study, but can not work as part of that study. For courses that required that, an F-1 status would be required.

I've covered things as best I can quickly. Others, will I am sure add to the discussion.

[fastcz84]

Thanks a lot for your detailed answer.

Clarified almost everything for me. So, a recent proposal (which is not yet passed) would allow (if ever passed) H4 spouse to obtain EAD card, during the beginning side of Green Card processing (and not wait for 5-8 years for PD to be current)?

Again! Thanks for the reply. Will surely help me plan accordingly now, and also understand forums discussion properly!

[Spectator]

Thanks a lot for your detailed answer.

Clarified almost everything for me. So, a recent proposal (which is not yet passed) would allow (if ever passed) H4 spouse to obtain EAD card, during the beginning side of Green Card processing (and not wait for 5-8 years for PD to be current)?

Again! Thanks for the reply. Will surely help me plan accordingly now, and also understand forums discussion properly!There is a Federal Register proposal that has been around for at least 2 years, that if implemented, would allow an H4 spouse to work if the primary was in receipt of an H1B extension beyond 6 years. It doesn't appear to be going anywhere.

The last version of CIR from 2011 included a proposal to bring H4 into line with L2, so they would be able to apply for an EAD and work.