As our office is gearing up for May 26, 2015 when the first H-4 Spouse EAD applications under the new rule can be filed, we are receiving many questions and concerns as to what kind of employment would be permitted by the H-4 Spouse EAD, once the actual work permit is approved. The quick answer is, “Any employment should be permitted.” Here are some details.
Background of the H-4 Spouse EAD Rule
The new 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. The earliest an H-4 Spouse EAD application can be filed is May 26, 2015.
EAD Must be Approved and Valid for Employment to be Authorized
It is important to note that the EAD work permit must be approved and valid for the H-4 spouse to be authorized to work. This means that a pending EAD application or expired EAD work permit do not authorize employment. As a result, careful planning of the filing process, especially for renewals, is essential.
What Kind of Work is Permitted?
The EAD work permit, once approved, is unrestricted. It allows employment in any sector, in any job, without regard to the H-4 spouse’s education, experience or skills. There is no requirement that the position be “skilled” or “professional.” There is no requirement that the H-4 spouse must have a minimum degree. There is no requirement that the job must be permanent or full-time. Part-time positions are permitted. Taking contract-based, temporary or independent contractor employment opportunities is also allowed with the H-4 Spouse EAD work permit.
Self-Employment or Running Own Company on H-4 Spouse EAD Is Permitted
The H-4 Spouse EAD work permit would also permit self-employment which would include being engaged as an independent contractor (1099) or running own business as a sole proprietor. Similarly, the H-4 Spouse EAD rule allows its holder to establish, own and operate a business such as a corporation or a limited liability company.
Minimum Salary Requirements
There are no specific minimum salary requirements for an H-4 Spouse EAD worker other than the federal and state minimum wage laws when the employment if structured as regular (W-2) employment. Some people mistakenly believe that the H-1B prevailing wage must be paid for the employment of an H-4 spouse who has an EAD under the new rule — this is incorrect. While the H-1B prevailing wage requirement still applies to the H-1B worker spouse, the H-4 Spouse does not have to be paid the prevailing wage as long as they are paid the applicable federal/state minimum wage.
The H-4 Spouse EAD work permit is very flexible and allows many different types of employment, including self-employment and owning and operating a business. In fact, this has been one of the government’s motives in proposing this rule and allowing for unrestricted EAD — stimulating the U.S. economy by allowing qualifying H-4 spouses to work in the field of their qualification, including running companies who would hire other employees. The H-4 Spouse EAD, however, must be valid at all times for employment to be authorized. This makes it critical to plan very well for filings and extensions to avoid any gaps in employment authorization which, in turn, may cause employment without authorization and violation of the H-4 status.
We will continue to provide information on this rule as it becomes available. Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.