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What Is the H-4 EAD (and Why Does Eligibility Confuse Everyone)?
The H-4 EAD is a work permit for certain spouses of H-1B visa holders. It lets you work for any employer, freelance, or start your own business without needing a separate work sponsor. You apply using Form I-765 under eligibility category (c)(26) (8 CFR § 274a.12(c)(26)).
The confusion starts with one word: "certain." The H-4 EAD is not available to every H-4 visa holder. It's not available to H-4 children at all. And it's not available to spouses of H-1B workers whose green card process hasn't reached specific milestones. The eligibility rules are tied directly to the I-140 immigrant petition, and understanding that connection is the key to knowing whether you qualify.
The program was created in 2015 through a DHS Final Rule (80 FR 10284). On October 14, 2025, the Supreme Court denied the petition for certiorari in Save Jobs USA v. Department of Homeland Security, leaving the D.C. Circuit's decision upholding the rule in place. While a certiorari denial does not decide the merits, it means the challenge did not succeed at the Supreme Court. The program remains in effect, but recent operational changes have made the renewal process much harder.
For a broader overview of the entire application process, documents, fees, and timeline, see our complete H-4 visa guide for spouses and dependents.
The Two Pathways to H-4 EAD Eligibility
The regulation at 8 CFR § 214.2(h)(9)(iv) creates exactly two ways an H-4 spouse can qualify for an EAD. You only need to meet one.
Pathway 1: Your Spouse Has an Approved I-140
This is the more straightforward path. If your H-1B spouse is the beneficiary of an approved Form I-140 (Immigrant Petition for Alien Workers), you're eligible for an H-4 EAD.
What matters under this pathway:
The I-140 must be approved, not just filed or pending. A receipt notice showing USCIS received the I-140 is not enough. You need the approval notice (Form I-797) or evidence that the petition has been approved.
Any employment-based I-140 category qualifies: EB-1, EB-2, or EB-3. It doesn't matter whether the green card is years away due to per-country visa backlogs. A current priority date is not required.
The I-140 does not need to be from your spouse's current employer. USCIS explicitly states: the approved I-140 can be from a prior employer, as long as it hasn't been revoked for fraud or material misrepresentation (USCIS H-4 EAD Page).
There is no waiting period after approval. The day your spouse's I-140 is approved, you can file your H-4 EAD application.
Pathway 2: Your Spouse Has an H-1B Extension Beyond 6 Years (AC21)
This pathway is the one most guides either skip or get wrong. And it's critically important because it lets you qualify even without an approved I-140.
Under the American Competitiveness in the Twenty-First Century Act (AC21), H-1B workers can extend their status beyond the normal 6-year maximum in two situations:
AC21 § 106(a): The H-1B worker's employer has filed a PERM labor certification or I-140 petition at least 365 days before the 6-year H-1B limit, and neither application has received a final denial. This allows 1-year H-1B extensions.
AC21 § 104(c): The H-1B worker has an approved I-140 but an immigrant visa number is not yet available (due to visa bulletin backlogs). This allows 3-year H-1B extensions.
If your H-1B spouse holds status under either of these AC21 provisions, you qualify for an H-4 EAD. The critical difference from Pathway 1: under Pathway 2, the I-140 does not need to be approved. A pending I-140 or even a pending PERM labor certification is sufficient, as long as the H-1B spouse has actually been granted the post-6th-year extension.
Side-by-Side Comparison: Pathway 1 vs. Pathway 2
| Pathway 1: Approved I-140 | Pathway 2: AC21 Extension | |
|---|---|---|
| I-140 status required | Must be approved | Can be pending (or not yet filed if PERM is pending 365+ days) |
| H-1B year requirement | None; can be in years 1-6 | Must be beyond the 6-year H-1B limit |
| Legal basis | 8 CFR § 214.2(h)(9)(iv)(A) | 8 CFR § 214.2(h)(9)(iv)(B) |
| Common scenario | Spouse's employer filed and got I-140 approved; green card wait is years away | Spouse has been in H-1B for 6+ years; PERM or I-140 filed 365+ days ago |
| I-140 employer | Any employer (current or former) | Based on the petition supporting the AC21 extension |
Requirements That Apply to Both Pathways
Regardless of which pathway you qualify under, you must also meet these baseline conditions:
You must be the spouse (not child) of the H-1B worker. You must currently hold valid H-4 status. You must be physically present in the United States when you file. No job offer is required. There is no annual cap or quota on H-4 EADs.
You file Form I-765 with USCIS, selecting eligibility category (c)(26). The filing fee is $520 for paper filings. USCIS continued accepting paper checks and money orders until Oct. 28, 2025. After Oct. 28, 2025, USCIS accepts only ACH debit (Form G-1650) or credit card (Form G-1450) for paper-filed forms without an exemption, and continues to accept online payments for forms filed online.
Check which pathway applies to you with Immiva's free eligibility tool.
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The I-140 Connection Explained
The I-140 petition is the bridge between your H-1B spouse's employment and the green card process. Changes to the I-140 can directly affect your work authorization.
Does the I-140 Need to Be Approved or Just Filed?
This is the most misunderstood part of H-4 EAD eligibility. The answer depends entirely on which pathway you're using:
For Pathway 1, the I-140 must be fully approved. "Pending" or "received" status does not count. If your spouse's employer just filed the I-140 last month and it hasn't been adjudicated yet, you cannot use Pathway 1.
For Pathway 2, the I-140 does not need to be approved. What matters is whether the filing (I-140 or even the earlier PERM labor certification) has been pending for at least 365 days and has not received a final denial, and whether your spouse's H-1B has been extended beyond 6 years on that basis.
So if someone tells you "you need an approved I-140 to get H-4 EAD," that's only half the story. Many H-4 spouses qualify through Pathway 2 with a pending petition.
The PERM-to-I-140-to-H-4-EAD Chain
The typical employment-based green card process that leads to H-4 EAD eligibility works like this:
First, the employer files a PERM labor certification (Form ETA-9089) with the Department of Labor. Processing times vary and DOL publishes a live queue update in the FLAG system. Once certified, the employer files Form I-140 with USCIS. Processing times vary and USCIS publishes current estimates; if premium processing is available for the I-140 classification, USCIS generally takes adjudicative action within the premium-processing timeframe (15 business days for most I-140 classifications, but up to 45 business days for certain I-140 classifications such as E13 and E21). Once the I-140 is approved, the H-4 spouse qualifies under Pathway 1.
Pathway 2 becomes valuable here: if the PERM or I-140 has been pending for 365+ days and the H-1B worker's 6-year limit is approaching, the H-1B can be extended under AC21. That extension triggers H-4 EAD eligibility under Pathway 2, even before the I-140 is approved.
Not all I-140 categories require PERM. EB-1 petitions and EB-2 National Interest Waivers (NIW) can be filed directly without labor certification. If your spouse has an approved EB-1 or EB-2 NIW I-140, you qualify under Pathway 1 regardless of whether PERM was ever filed.
What Happens If the I-140 Is Revoked or Withdrawn
The distinction between "revocation" and "withdrawal" matters here.
If USCIS revokes the I-140 (for fraud, material misrepresentation, or invalidation of the underlying labor certification), Pathway 1 eligibility is lost immediately. The H-4 spouse may still qualify under Pathway 2 if the H-1B spouse holds a valid AC21 extension based on a different petition.
If the employer withdraws the I-140 within 180 days of approval, the approval is automatically revoked. This has the same effect as a USCIS revocation.
If the employer withdraws the I-140 after 180 days of approval, the I-140 remains valid under the January 2017 portability rule (81 FR 82398). This protects you. Your spouse retains the approved I-140 for H-1B extension purposes, priority date retention, and your H-4 EAD eligibility. The only exceptions: fraud, material misrepresentation, invalidation of the labor certification, or material USCIS error.
If an EAD has already been issued, it generally remains valid through its expiration date unless DHS/USCIS revokes the employment authorization before that date. Employment authorization granted under 8 CFR 274a.12(c) can be revoked prior to expiration if a condition of eligibility is no longer met or for good cause. If the underlying basis for your H-4 EAD eligibility changes (for example, if the eligibility conditions no longer exist), USCIS may revoke the EAD/authorization before the printed expiration date. At renewal time, you would need to show you still qualify through Pathway 1 or Pathway 2.
When Your H-1B Spouse Changes Employers
Your spouse can change H-1B employers without affecting your current EAD. USCIS does not require the approved I-140 to be from the current employer (USCIS H-4 EAD Page). If the prior employer's I-140 was approved more than 180 days before withdrawal, it remains valid and usable for your eligibility.
No "transfer" is needed. You don't need to notify USCIS of your spouse's job change. Your EAD stays valid until expiration. At renewal time, you'll need to document whichever pathway you're claiming.
For more on how the green card backlog affects H-1B extensions and the I-140 timeline, see our analysis.
Who Does NOT Qualify for H-4 EAD
Who doesn't qualify? These are the most common situations where people assume they're eligible but aren't:
H-4 dependent children. The regulation at 8 CFR § 274a.12(c)(26) limits eligibility to "an H-4 nonimmigrant spouse." Children on H-4 status (unmarried, under 21) cannot get an EAD under this rule, regardless of their age or qualifications.
H-4 spouses without an I-140 or AC21 basis. If your H-1B spouse is in years 1 through 6 and has no I-140 filed or approved, you do not qualify. The green card process must have reached at least one of the two pathway milestones.
Spouses of other H visa categories. H-2A, H-2B, H-3, and H-1B1 (Chile/Singapore FTA) dependents are not eligible for H-4 EAD. This rule applies only to spouses of H-1B workers.
H-4 spouses with a pending I-140 but no AC21 extension. If your spouse filed the I-140 recently and is still within the 6-year H-1B period, and the I-140 isn't approved yet, neither pathway is met. You'd need to wait for either the I-140 approval (Pathway 1) or for the 365-day pending threshold plus 6th-year extension (Pathway 2).
Anyone filing from outside the United States. You must be in the U.S. in valid H-4 status to file.
What the 2025-2026 Changes Mean for H-4 EAD Eligibility
The eligibility criteria themselves have not changed. The two pathways remain the same. But the practical environment has shifted dramatically, and it affects how you plan around your eligibility.
Automatic EAD extensions for timely filed renewals largely ended for renewals filed on or after October 30, 2025. On October 30, 2025, DHS published an interim final rule eliminating the practice of providing an up-to-540-day automatic extension for eligible EAD renewal applications filed on or after that date (including category (c)(26)). Previously, eligible timely filed renewals could receive an automatic extension of up to 540 days. Now, for renewals filed on or after October 30, 2025, if your EAD expires before USCIS approves the renewal (and you have no other work authorization), you must stop working until USCIS approves the renewal.
Processing times remain unpredictable. USCIS updates posted processing times regularly, so check the USCIS Processing Times tool for the most current estimate for Form I-765. With no automatic-extension safety net for renewals filed on or after October 30, 2025, plan to file as early as USCIS allows (you cannot file a renewal more than 180 days before your current EAD expires). You can check your EAD application status online.
The program remains in effect. On October 14, 2025, the Supreme Court denied the petition for certiorari in Save Jobs USA v. Department of Homeland Security, leaving the D.C. Circuit's decision in place. While immigration policy can change through future rulemaking or litigation, this specific challenge did not succeed at the Supreme Court.
New form edition. USCIS periodically updates Form I-765 edition-date requirements and may reject filings submitted on an edition that is no longer accepted. Before filing, confirm the acceptable edition date directly on the official USCIS Form I-765 page and use the newest acceptable edition listed there.
If you're ready to file, make sure you know your Alien Registration Number (A-Number) and have your I-94 record accessible before starting the application.
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How to Know Which Pathway Applies to You
If you're not sure which pathway you fall under, ask these questions in order:
Step 1: Is your spouse currently on H-1B status? If no, you don't qualify for H-4 EAD.
Step 2: Has your spouse's employer filed an I-140? If yes, has it been approved? If the I-140 is approved, you qualify under Pathway 1. You can stop here.
Step 3: If the I-140 is pending (or only a PERM has been filed), has your spouse been in H-1B status for 6 or more years? If no, you don't qualify yet under either pathway.
Step 4: If your spouse is at or past the 6-year H-1B mark, has the PERM or I-140 been pending for at least 365 days? And has your spouse been granted an H-1B extension under AC21? If yes to both, you qualify under Pathway 2.
Step 5: If none of the above apply, you do not currently qualify. Your options are to wait for the I-140 approval or the AC21 extension milestone.
If you want a faster answer, use Immiva's eligibility checker to walk through these questions interactively.
Official Sources
This guide is based on current USCIS policy and federal regulations. All information was verified against these official sources as of February 2026:
USCIS Resources
Federal Regulations
- 8 CFR § 214.2(h)(9)(iv) - H-4 dependent spouse employment authorization eligibility criteria
- 8 CFR § 274a.12(c)(26) - EAD eligibility category for H-4 spouses
Federal Register
- Employment Authorization for Certain H-4 Dependent Spouses, 80 FR 10284 - Original 2015 rule creating H-4 EAD
- Retention of EB-1, EB-2, and EB-3 Immigrant Workers, 81 FR 82398 - I-140 portability rule (withdrawal after 180+ days preserves approval)
- Removal of the Automatic Extension of Employment Authorization Documents, 90 FR 86788 - October 30, 2025 Interim Final Rule
Immigration Statutes
- American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313 (October 17, 2000) - Sections 104(c) and 106(a)/(b) authorizing H-1B extensions beyond 6 years
Immigration law changes frequently. We monitor USCIS policy updates and revise this guide when regulations change.