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).

"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).

"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.