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Last Updated On: April 8, 2024 | Published On: January 16, 2023
Globally, a highly sought-after goal is working in the U.S. There are numerous ways to contribute to the American workforce, and the EAD and the H-1B are two. Knowing how these two tools of immigration relate can be vital to your efforts to work in the U.S. Here are the pros and cons of the EAD vs. H-1B that will help you to make the right decision and learn about the critical differences between the two.
The most significant difference between EAD and H-1B is that EAD is strictly an approval to work in the U.S. for foreigners that are on a non-immigrant visa. On the other hand, H-1B is an immigrant visa that allows foreigners to work for a specific employer and eventually apply for lawful permanent residency.
Update 10/27/23: Select Renewal Applications for Employment Authorization to Receive Automatic Extension
Now that we understand the fundamental difference between the H-1B and the EAD, they have some advantages and disadvantages.
If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition. Contact Us
If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.
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In May of 2015, the Department of Homeland Security unveiled a policy permitting certain H4 visa holders (the spouses of H1B workers) to apply for employment authorization. This was a huge relief for thousands of educated and skilled immigrants who were in the United States accompanying their H1B spouses but unable to work while waiting for their spouse’s green cards to be approved. Not all spouses on H4 status are eligible for those however. Those that are must have an approved I-140 petition or a pending PERM or I-140 for more than 365 days as well as have their H1B extended past the six-year limit. As previously mentioned, the work permit
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Our office sometimes gets asked by those who already have H1B status if it’s better to work on an H4 EAD or using their H1B. While the answer will largely depend on your personal circumstances, below are some pros and cons.
One of the pros of getting an H4 EAD is that the cost is typically lower than going through the H1B petition process. Another pro is that the H4 EAD doesn’t have the prevailing wage requirement which comes with the H1B. Moreover, if you intend on taking a leave of absence or gaps in employment, the H4 EAD is more flexible compared to the H1B. Lastly, you are not restricted to which employment position or salary with the H4 EAD. If you need to switch employers, the flexibility of the H4 EAD is superior.
One of the main advantages of the H1B over the H4 EAD is that you are not dependent on your spouse’s working status for work authorization. If your H1B spouse, for example, were to lose their status, your work status would be in jeopardy as well since it’s dependent on their visa. The other advantage of the H1B over the H4 EAD is that the H1B allows continued employment while the H1B extension is filed and pending.
Switching from H-1B to EAD is useful when you are having trouble transitioning to a new employer with your H-1B or if you don’t want to be tied to one employer as you would be with H-1B. EAD allows you to work for any employer, and switching to it from H-1B can be helpful to some foreign workers that need that flexibility.
Keep in mind that to be able to switch from H-1B to EAD, you will first need to apply and have USCIS approve your EAD. The application process is quite simple. You must submit form I-765, attach relevant evidence and pay the filing fees. You will generally receive a response within 90 days.
You don’t need to get an EAD if you are already working in the U.S. on an H-1B visa. If you were to get an EAD while on H-1B, this would terminate your H-1B visa status. This is because your H-1B visa is employer specific, while EAD is not employer-specific work authorization.
This also applies the other way around. If you already have EAD, you do not need to apply for H-1B. However, because H-1B is an immigrant visa, meaning you can transition to lawful permanent residency, it could be worth getting an H-1B visa. Again, this decision depends on your current residency status and the visa on which you entered the U.S.
The H-1B is a non-immigrant visa that allows specialized workers to work in the U.S. Due to its relatively low eligibility requirements, the H-1B is the most popular non-immigrant visa available. Unfortunately, this has given rise to a system that can make obtaining one difficult.
Here are the basic requirements you need to qualify:
While these may seem simple, they have some nuances to note. For example, the USCIS carefully scrutinizes whether or not a position is a specialty. Working with an immigration attorney can help you better predict what the USCIS will think of your position.
Another thing to keep in mind is the employer-employee relationship. The employer needs to be able to control the duties, wages, and employment status of the employee. Because of this, you cannot self-petition for an H-1B visa, and working for your own company can be tricky to get approved.
But there’s one major issue you must overcome when considering the H-1B vs. EAD: the lottery. Due to the massive volume of H-1B petitions the USCIS receives each year, USCIS holds an annual lottery. There are only 85,000 total slots in the cap, and with hundreds of thousands of submissions each year, the selection odds can be relatively low.
A master’s degree gives you access to the master’s cap, for which the first 20,000 of the 85,000 slots are reserved. If you qualify for the master’s cap and your petition is not selected, it will be re-entered into the regular cap for a second shot. This is the only way to increase your chances of being selected. The lottery takes place starting April 1st, so that is the earliest that your petition can be filed.
If USCIS selects your petition, they will process it. If approved, you can start working for your employer on October 1st, six months after filing. The H-1B is valid for three years initially with the potential to extend it up to six years. If USCIS does not select your petition in the lottery, they will refund your fees, and you will need to wait until the following year to file again.
One notable aspect of the H-1B is that the fees are considerably higher than for other non-immigrant visas or the EAD. Here are the H-1B visa fees as of the 2023 filing season:
The total mandatory cost is between $1,710 and $6,460, depending on your situation. Remember that all of these costs are your employer’s responsibility, which sets it apart from the EAD card.
Numerous factors go into your H-1B visa’s processing time, but the standard is six months for the I-129. You can use premium processing to speed this along, but you will still only be able to file on April 1st and work on October 1st due to the lottery cap, which means you will need to wait six months regardless.
However, if you have a job that exempts your petition from the cap, premium processing can make your H-1B processing time just 15 calendar days.
The EAD is known as an Employment Authorization Document. As the name suggests, this document allows the holder to work in the U.S. for as long as the document is valid, which varies from case to case. We will refer to it as an EAD card since it usually comes as a plastic card with your information.
Overall, the EAD allows you to work if your status does not already allow it, though certain statuses still do not permit working, even through the EAD card. Here are some of the people who may qualify for an EAD card:
Here are some of the people who would not qualify for an EAD card:
To get an EAD card, you need to file an I-765 Application for Employment Authorization. This form requires a $380 fee and takes about 90 days (3 months) to process, though it may take longer depending on the caseload of the service center.
H4 Visa EAD FAQs | Common H4 EAD Questions Answered
Ultimately, like most immigration comparisons, the best method is the one that fits your situation. For example, if you are looking to work temporarily in the U.S. or are interested in transitioning toward a green card, the H-1B might be your best bet.
However, if you do not meet the requirements for the H-1B and can qualify for an EAD, then the answer is clear. If you are in the unique position of being able to choose from both, then you should work with your immigration attorney to determine which is best for your case.
Choosing between getting an EAD or an H-1B can have a drastic effect on your immigration path, it is a decision that is best made with the help of an immigration attorney. The thousands of successful cases processed at VisaNation Law Group have honed their understanding of how the USCIS works and what decisions are best for each individual case.
Tags: EAD, Fees, H-1B Lottery
