Is It Better to Work Using H-4 EAD or H-1B?

Since the H-4 EAD rule became effective in May 2015, our office has assisted many eligible H-4 spouses secure work authorization under the H-4 EAD program. We continue to applaud USCIS’s efforts to allow certain H-4 spouses to apply for and obtain work authorization. In many cases, however, the eligible spouse may already have another type of work authorization, including H-1B and we are often asked whether it is better to work using H-4 EAD or using H-1B. The answer is very much case specific, but we hope to provide some pros and cons to both alternatives.

Background of the H-4 EAD Work Eligibility

The H-4 Spouse EAD rule allows certain H-4 spouses to apply for and obtain a work permit which would allow them to work in the United States while they are waiting for their H-1B spouse’s permanent residency (green card) process to be approved.   Not all H-4 spouses are eligible:  only spouses of H-1B workers who have an approved I-140 petition OR have a pending PERM or I-140 petition for more than 365 days and have extended their H-1B past their six-year H-1B limit are eligible.   More on the rule, eligibility and other details.  Once the H-4 EAD work permit is approved, it allows unrestricted employment, including self-employment and running own business.

Working on H-4 EAD vs. H-1B – Which One is Better for Me?

As noted earlier in this article, the question whether it is better to take employment on H-4 EAD or H-1B is very much case specific, but here are the argument for working on H-4 EAD and for working on H-1B (assuming both are options):

H-4 EAD Employment Advantages:

• Lower cost of securing H-4 EAD – in most cases, the cost of securing H-4 EAD is significantly lower than the cost of securing an H-1B petition. In most cases, the applicable attorney and the total amount of filing fees are significantly lower for H-4 EAD cases than for H-1B cases.
• Compensation flexibility – employment on H-4 EAD does not have the prevailing wage requirement associated with H-1B.   Similarly, the H-4 EAD allows more flexibility in taking unpaid leave of absence or stopping employment, for example, between projects.
• Unrestricted and flexible employment – the H-4 EAD allows unrestricted employment – there are no requirements for specific positions, hours worked and minimum salary (as long as it complies with federal and state minimum wage laws). Changing employers on H-4 EAD is easy and fast. There are no project or end client documents required. H-4 EAD also allows self-employment, independent contracting and owning and running own business. See more details.

H-1B Employment Advantages:

• Employment authorized during extensions: a very significant benefit of the H-1B is that the H-1B rules permit continued employment in the U.S. while an H-1B extension (or transfer) is timely-filed and pending even after the current H-1B term has expired. In the case of H-1B extensions, a pending H-1B allows employment for up to 240 days past the expiration date of the current H-1B term.

In comparison, the H-4 EAD must be valid at all times without any gaps even if an H-4 EAD extension is pending (with very few exceptions, see below). This makes it extremely difficult to plan uninterrupted H-4 EAD work authorization, especially since the H-4 EAD is linked to the spouse’s H-1B employer’s decision to extend H-1B. Combined with the fact that the regular processing H-1B takes 4-6 months itself, ensuring an uninterrupted H-4 EAD work authorization practically requires concurrent (see our alert on this option) and premium processing filing (see our alert for details) of H-1B, H-4 status and H-4 EAD in most cases.

• No dependency on spouse’s status: working on H-1B means that the H-1B worker is not dependent on their spouse to provide status and work authorization (as H-4 spouses are).   This provides a “safety” option in the event the other H-1B spouse loses their job or faces other H-1B status issues.   When both spouses work on H-1B, they both provide each other status (and in many cases, H-4 EAD option) in the event the other spouse’s H-1B is not maintained, for any reason.

Biggest Challenge on H-4 EAD – Ensuring Continued Work Authorization

As noted in the section above, what may be the major disadvantage of H-4 EAD is the potential uncertainty and the possible (significant) gaps in employment authorization, especially during renewals. It is difficult to get and maintain a good job and career while there is such uncertainty of work authorization and likelihood of gaps in employment.

An H-4 spouse’s status extension and H-4 EAD renewal are linked to the primary H-1B worker’s petition extension which depends on the H-1B employer and, in many cases, availability and timing of end client projects.   This kind of chain of dependent events increases the likelihood that an H-4 EAD extension may be delayed. Currently, USCIS is severely backlogged on regular processing of H-1B applications which often take 4-6 months. Since H-1B workers can work during such period of pending H-1B, employers are not often eager to use premium processing solely for the benefit of the H-4 dependent. As a result, to avoid interruption or gap in employment authorization, H-1B/H-4 status and H-4 EAD applications must be filed either very early (H-1B extensions can be filed as early as 6 months prior to expiration) OR be filed concurrently using premium processing.

The bottom line is that when uninterrupted employment is critical for a position and career growth, H-1B employment may actually be a better (or at least, safer) option compared to H-4 EAD employment.

Limited Options for Work Authorization During H-4 EAD Renewal

In a November 2021 USCIS settlement and in a May 2022 policy change, USCIS has agreed to allow continued work authorization based on a timely-filed and pending H-4 EAD in limited cases where the H-4 status is already granted.     Please see this alert for details.

Conclusion

While we applaud the efforts USCIS has put in implementing the H-4 EAD program, we continue to caution that the H-4 EAD is not the solution (or the best solution) to many who are eligible to work using H-1B.   In many cases, in fact, H-1B remains the better option to continue employment and career in the U.S.

The decision whether to work using H-4 EAD or H-1B is highly case-specific and personal.   Our office is happy to provide individualized consultations to help evaluate the options and we are happy to help pursue H-4 EAD applications. Since May 2015 our office has tremendous track record, in terms of results and in terms of timing of approvals, so we feel confident that we can assist in as-fast-as-possible H-4 EAD approval. We can also provide a quote for the H-4 Spouse EAD attorney service. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.