Does the spouse have to be in US for applying H4-EaD?

Hi Everyone ,

Please can you help me out with a question.

Spouse was in USA till Aug 2018 after that she left to INDIA
Also Spouse has a valid entry-exit I-94 travel history when she left.
Then my I-140 got approved just now March 2019 i want to file a H4-EAD but she cannot come to USA due to her brothers wedding in a 2 months can i file H4 EAD without my spouse in USA or she need to be physically present in USA during the decision.

Or is it possible she can come and go what is mandatory clause here iam not sure any help is appreciated.

Thanks
Joy

Your wife should be physically present in USA to apply H4-EAD.

She can come to US, apply H4-EAD and then go out of USA though.

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Hi @Anil.Gupta,

I have a similar query where my I-140 is approved just a week back and I need to apply for H4-EAD for my wife who is currently in India.
She has a valid H4 Visa stamp on her passport till March 2020 but did not travel to US on that visa still, so there is no valid I-94 for her as of now.

  1. Does she need to physically come to USA before her H4-EAD can be filed?

  2. If yes, Is there a time limit till when she has to be present in USA after the H4-EAD application is filed or can she travel back to India immediately after filing (for some of her commitments) and wait for EAD approval?

  3. If she returns back to India, will her H-4 status be lost (even when her H4 Visa stamp and I-94 record) would be valid till March 2020?

  4. If there is an RFE on her H-4 status during her EAD application processing, what would be the course of action to respond to that RFE ? Does she need to come back again or can I (being in USA) reply with the needed documents (what are those??) to prove her H-4 status ?

Really appreciate your help!

Thanks,
Saurabh

Hi @Saurabhsrv

A simple thing to understand is that ‘H4 status’ is written on i94. When you go out of USA, the i94 is automatically invalidated. You get a new i94 as and when you re-enter USA.

You need a valid H4 i94 to apply H4 EAD. If she leaves US after applying for H4EAD, she might get an RFE to prove the valid H4 status.

If you call her back to US just to get a valid H4 i94 and then she leaves again, the USCIS might just deny the application.

H4 EAD can only be used when H4 is in USA. Not sure why you want it if your spouse is planning to stay outside USA anyway.

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Hi @Anil.Gupta,

Thank you so much for your quick and detailed reply.
My concern here is that my wife has to be in India currently to support one of her ailing family members.
So she needs to return to India once her EAD application is filed. She can come back as soon as the situation allows.

Since,even USCIS website says that a person can travel outside USA while waiting on her EAD to be approved (USCIS FAQs - “You may travel if you are in valid H-4 status and meet all the admission requirements, including having a valid H-4 nonimmigrant visa.”), why is there a risk of H-4 EAD getting denied, if she comes here and goes out as she would still have a valid H-4 Visa till March 2020 to return anytime?

Also, when USCIS says - “You may travel if you are in valid H-4 status”, what exactly do they mean being in valid H-4 status as your I-94 is going to expire as soon as you move out of USA.

It’s little confusing for me so seeking for expert advice.
Thanks in advance for your help again!

Regards,
Saurabh

I have explained what i could in simple terms as to what USCIS does practically.

USCIS may approve or deny H4EAD as per their opinion. I cannot estimate their response.

My suggestion is to apply when your wife is in US.

Thank You so much for your advice @Anil.Gupta.
Appreciate it!

Thanks,
Saurabh

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