H-4 EAD Information

[statesmeup 0]

I've been offered a post-doctoral position at a US university/hospital. I was hoping they could offer me a J-1 visa so my spouse could come with me, apply for an EAD, and work freely. However, it appears they're having difficulty applying for a J-1 and an H-1B is looking likely.

Although many benefits are associated with the H-1B for myself, such as it wouldn't require me to return home for two years after my position, it's not helpful for my partner as an H-4 does not allow working.

This said, I have researched and seen that the rules have changed on this matter, in that if the H-1B has an approved I-140 then the H-4 can apply for an EAD. My questions are:

• What are the difficulties in me/my sponsor applying for an I-140 along with my hypothetical H-1B before my employment starts (end of this year)? Or failing that, is it possible to apply for one immediately once my H-1B has been finalised?
• I currently do not have plans to go ahead with full immigration status, as I don't know where I'll be in two years time after my position ends. Could I/my employer file for an I-140 and leave it at that? Or does there need to be sufficient evidence that I'm actually going ahead with the process to get full immigration (I believe my closest immigrant visa would be an EB-2? I'm not 'sensational' enough for an EB-1).
• How long does it take for approval on an I-140? I've seen somewhere that with a cost ($1000 on top of the normal cost) it can be processed in 15 days. Is that 15 days with an approval or have I read this completely wrong?

Effectively my main goal here is getting an EAD for my spouse. Any suggestions on options would be great. Am I right in believing that, if possible, the J-1 visa is my best option?

[Boiler 45,659]

You do not do any of this, your Employer does, if they want to.

Nothing to stop them filing an EB2 now, if they want to. Certainly something you need to include in your negotiations.

From what I recollect the bigger issue tends to be with the Employer/Lawyer, I do not recollect off hand how long the 140 takes assuming they get going.

Not all J's have a HRR, a minority.

[jan22 3,056]

The H4 would only be approved for a work permit if you, the H1B recipient, were already the benficiary of aan approved I-140 (immigrant visa) petition, as you said. It doesn't sound like the university is filing an I-140 at this time -- I think it unlikely that the university will want to pay all of the fees, commit the legal resources needed, and put its reputation on the line with the US government, saying they were willing to sponsor you for permanent immigration to the US when you have no current intention of doing so. J2s are authorized to work at the discretion of USCIS - no guarantees. Bottom line, there is no promises for your spouse being able to work, so you need to base accepting or not accepting the position based on that. I know that's not what you wanted to hear, but it's the reality of the situation.

[Boiler 45,659]

Spouse can always apply for their own visa.

[statesmeup 0]

You do not do any of this, your Employer does, if they want to.

Nothing to stop them filing an EB2 now, if they want to. Certainly something you need to include in your negotiations.

From what I recollect the bigger issue tends to be with the Employer/Lawyer, I do not recollect off hand how long the 140 takes assuming they get going.

Not all J's have a HRR, a minority.

Yes, my questions were under the assumption my employer would be filing all of this, which is another problem entirely. IF (a bit if) my employer filed an EB-2 now, would that allow my spouse to work?

I'm surprised about the minority of the J-1's not having HRR's. From what I gather from online it's the opposite with few not having to return.

I'm aware spouses can apply for their own visas, and she has been throttling off loads of applications, but finding an employer to hire a foreigner is as difficult as it is believed. She has a bachelors and works in graphic design, it's looking to be incredibly hard for her to get one herself, thus all the 'dependant' questions.

Thanks for your response.

The H4 would only be approved for a work permit if you, the H1B recipient, were already the benficiary of aan approved I-140 (immigrant visa) petition, as you said. It doesn't sound like the university is filing an I-140 at this time -- I think it unlikely that the university will want to pay all of the fees, commit the legal resources needed, and put its reputation on the line with the US government, saying they were willing to sponsor you for permanent immigration to the US when you have no current intention of doing so. J2s are authorized to work at the discretion of USCIS - no guarantees. Bottom line, there is no promises for your spouse being able to work, so you need to base accepting or not accepting the position based on that. I know that's not what you wanted to hear, but it's the reality of the situation.

Thanks for your honestly. Are J-2's often denied EAD's? From my research I haven't seen any horror stories. What are common reasons for rejection? Are the fees associated with an I-140 that much higher than that of an H-1B?

I think I already know the answer, but I'll ask anyway. Is there REALLY no non-immigrant visa which freely allows spouses to work? It seems like such a hurdle for what I imagine affects 100,000's of foreigners. Does the US government rely on those wishing to have their spouses work applying for permanent residency?

I would be very much up for applying for an EB-2, but only if it meant I could come freely between my home country (UK) and the states to live and work, and it seems like the green card gets revoked if you leave for greater than a year, so not much point...

Spouse can always apply for their own visa.

Thought of another questions after posting my last...

If my spouse was over on an H-4 visa, what are her options for applying for her own, independent visa while in the states? Does it increase her chances? Are there additional options not available when applying 'fresh' from the UK?

[Boiler 45,659]

Most people from the UK that I have met or have seen on boards are on L's, E2 or O's.

So all have the trailing spouse able to work.

If she is going for a H will need to be with a non profit.

I do not think I have seen anybody post who has been through this process, it is after all new. I could look it up but so can you so no added value.

[Boiler 45,659]

If you are here then you have practical advantages of being here, local number, address and availability.

You can adjust status but that means you are land locked.

[jan22 3,056]

Yes, my questions were under the assumption my employer would be filing all of this, which is another problem entirely. IF (a bit if) my employer filed an EB-2 now, would that allow my spouse to work?

I'm surprised about the minority of the J-1's not having HRR's. From what I gather from online it's the opposite with few not having to return.

I'm aware spouses can apply for their own visas, and she has been throttling off loads of applications, but finding an employer to hire a foreigner is as difficult as it is believed. She has a bachelors and works in graphic design, it's looking to be incredibly hard for her to get one herself, thus all the 'dependant' questions.

Thanks for your response.

Thanks for your honestly. Are J-2's often denied EAD's? From my research I haven't seen any horror stories. What are common reasons for rejection? Are the fees associated with an I-140 that much higher than that of an H-1B?

I think I already know the answer, but I'll ask anyway. Is there REALLY no non-immigrant visa which freely allows spouses to work? It seems like such a hurdle for what I imagine affects 100,000's of foreigners. Does the US government rely on those wishing to have their spouses work applying for permanent residency?

I would be very much up for applying for an EB-2, but only if it meant I could come freely between my home country (UK) and the states to live and work, and it seems like the green card gets revoked if you leave for greater than a year, so not much point...

Thought of another questions after posting my last...

If my spouse was over on an H-4 visa, what are her options for applying for her own, independent visa while in the states? Does it increase her chances? Are there additional options not available when applying 'fresh' from the UK?

The J2s that I know of that have been denied were primarily because of the requirement that the J2 income can't be needed to support the family, i.e., the salary of the J1 must be sufficient for that and the J2 income merely to supply funds for things like recreation or cultural experiences, work experience, etc. Don't know if there are other reasons. Being in the US while trying for a work visa has a few advantages -- you're there for interviews, for example. Re the added cost of the I-140: The petition fee is almost $600 ($540, I think), the premium processing fee is $1225. But, there are ignificant legal costs that the university would also have to pay -- even if they use in-house attorneys, it carries a cost. Lots of forms, possible labor certification, building the case for needing you as an permanent resident vs a short-term resource, etc.

[statesmeup 0]

The J2s that I know of that have been denied were primarily because of the requirement that the J2 income can't be needed to support the family, i.e., the salary of the J1 must be sufficient for that and the J2 income merely to supply funds for things like recreation or cultural experiences, work experience, etc. Don't know if there are other reasons. Being in the US while trying for a work visa has a few advantages -- you're there for interviews, for example. Re the added cost of the I-140: The petition fee is almost $600 ($540, I think), the premium processing fee is $1225. But, there are ignificant legal costs that the university would also have to pay -- even if they use in-house attorneys, it carries a cost. Lots of forms, possible labor certification, building the case for needing you as an permanent resident vs a short-term resource, etc.

Ah, yes. I have actually seen somewhere about the J-2's salary not being a necessity for living, but thanks for pointing that out. This isn't an issue as my salary would cover the two of us and she would be, as definition of the word, dependant. We both would like her to being able to work purely for her personal career development, and surely you'd get bored without a job for two years?! Her income isn't 'needed' per se.

[Boiler 45,659]

So what are your plans?

[statesmeup 0]

So what are your plans?

Well, as it stands I don't have much I can plan. When I interviewed for the position they stated I would be on an H-1B visa, or a J-1. I've done a fair bit of research on each, and I think I have a good understanding, and believe the J-1 is the best given our situation. However, they've come back to me late last week stating it "appears to be much more difficult" to obtain a J-1, which triggered this thread. I like to think them obtaining a J-1 will be harder, and not necessarily impossible, over an H-1B, but I'll have to follow up soon and get the details.

Failing that, and I do get an H-1B, I'm not too sure what my options are, thus me questioning the I-140. My partner getting a visa independently will solve everything, and in that case an H-1B would be better for me than a J-1, but that seems nigh impossible, especially getting an uncapped visa which would allow her to start sooner than Oct 2016.

Any suggestions would be great, but I seem limited in choice.

[Boiler 45,659]

Who is they who say a J would be harder?

Bear in mind HR know squat.

[statesmeup 0]

Who is they who say a J would be harder?

Bear in mind HR know squat.

Thanks for your continued interest and help. My position is joint with a hospital and a university, and they were trying to hire me through the hospital, which restricted them getting a J-1. I received news yesterday that they're now employing me through the university to get me my J-1, which is great news!

[Boiler 45,659]

That sounds better. Not sure why it makes a difference, probably a policy issue rather than anything immigration related.

[blahblahblog 36]

Case is solved but I only saw the thread today and I may be able to clarify some things. P

ostdocs can't get I-140 because the position is temporary by definition. Universities only give I-140 for postdocs when they are self-funded and more than 3-5 years (internal policy) because that makes them de facto permanent employees. They also change your title to Research Faculty or something like that. So if you get a H-1B, it's going to be hard for your wife to get a H-4 EAD. However, once she is here as a H-4, she can adjust to H-1B on her own with a job offer, though there are timing considerations from the caps.

Normally postdocs can get either H1-Bs or J-1s. Universities like giving J-1s because it's cheaper for them, but most J-1 postdocs from developing countries get the 2YHRR so, when they have leverage, they negotiate for H1-Bs instead. Your case is peculiar because you, for good reasons, would prefer a J-1. Most postdocs get paid enough that they get the J-2 work authorization.

About the hospital, I think only research hospitals can issue J-1s for postdocs. Normal hospitals can issue J-1 for training physicians which is a different regulation (must work on clinic, must be learning something, obligatory 2YHRR).

The J-1 regulations are a mess. Which is the natural outcome of having such a broad category that includes au pairs, postdoctoral researchers, foreign interns, medical trainees and government funded students.