Thursday, June 4, 2015

Can my H1B spouse change job while my H4 EAD is pending?

The H4 EAD new rule is presenting a number of very interesting questions, which sometimes do not have direct answers.  One of them is whether an H4 EAD applicant has to re-file for a new H4 EAD if his or her H1B  spouse is transferring or amending his or her H1B application.

Whenever, an H1B transfer is made, the applicant has to also file for a change of status (Form I-539) for their H4 spouse.  This is a very strict rule that any good lawyer who knows about immigration law would know.  However while the case is pending the H1B applicant has an option under AC 21 either to stay with the present employer or move to the new employer.  The same rule applies even after the H1B transfer  is approved, the H1B holder can elect to move to the new employer or stay with the present employer.  Based on this logic, it seems that the H4 EAD applicant does not have to file a new application if a transfer is being effected because the underlying H1B and H4 will stay valid in both situations.

However we advise caution, unless it is really necessary to transfer your H1B during the pending H4 work permit (EAD) application, we do not recommend to do so.  The reason is that the system is new and any mistake or misunderstanding can actually be held against the H4 EAD applicant.

The H4 EAD rule  comes with a lot of difficulties and ease attached to it, however, if the case is well prepared and a good lawyer is handling it, your chances of success might be increased.

If you need help for your H4 work authorization or any immigration matter, please call us at (510) 742 5887 or email info@peerallylaw.com