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Considerations for H-4 EAD Applicants Changing Status to H-1B

As we get closer to October 1st when many foreign nationals will transition to H-1B status, it is important to ensure both employers and employees will be in compliance with the terms and conditions of the approved petition. For individuals working for multiple employers pursuant to their approved H-4 EAD timing is important.

While an H-1B visa is employer dependent, the H-4 EAD does not operate the same way. The H-4 EAD is unrestricted and allows employment in any sector without regard to the H-4 spouse’s education, experience or skills. Unlike the H-1B visa, there is no specialty occupation or minimum education requirement. H-4 EAD visa holders are able to work full time, part time, on temporary assignments, or can choose not to work at all. Due to the versatile nature of the H-4 EAD, some choose to work for multiple employers at once.

H-4 EAD visa holders are able to work for multiple employers at the same time but there are considerations to be aware of when trying to change status from H-4 to H-1B status after the petition has been selected in the lottery.

For example, if an H-4 EAD applicant is working for both Company A and Company B pursuant to their H-4 EAD and Company A files the I-129 petition requesting a change of status, upon approval, the H-4 EAD applicant can only work for Company A. If the H-1B petition is approved prior to 10/1, the H-4 EAD applicant will automatically change status on 10/1 and will only be authorized to work for Company A as of that date. However, if the H-1B petition is not approved until 10/31, assuming the H-4 EAD applicant still has work authorization pursuant to their H-4 EAD at that time, the H-4 EAD applicant can continue working for both Company A and Company B until the H-1B petition has been approved. The major difference here is that if the petition has been approved prior to 10/1 the Beneficiary can provide Company B with notice that they are required to stop work on 9/30. If the case is not approved until after 10/1, the change of status will likely take effect on the same date the case is approved and the Beneficiary will be required to stop working for Company B immediately.

There are conflicting opinions about whether the H-4 EAD applicant must stop work for Company B on the exact date the case has been approved or on the date they receive the approval notice but individuals should err on the side of caution and stop work as soon as they are aware that their H-1B petition has been approved. Please note that this only applies to cases where a Petitioner requested a change of status. If the Petitioner applied for the H-4 EAD holder’s petition in consular processing the H-4 EAD holder can continue to work for both Company A and Company B through the duration of their approved H-4 EAD after the H-1B petition is approved in consular processing.

If you have any questions concerning your immigration status and work authorization, please contact one of our qualified business immigration attorneys who can assist you.

By: Ashley Thomas

Ashley Thomas is an Senior Associate Attorney at Reddy Neumann Brown PC who focuses on employment-based non-immigrant visas. Ashley’s practice covers all phases of the visa process including filing petitions, responding to Requests for Evidence (RFE), and drafting motions and appeals. She has completed over 200 RFE’s to date in response to H-1B, L-1, I-140, and OPT petitions.

Reddy & Neumann has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on US. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.