Eligible H-1B Spouses May Apply for Employment Authorization Beginning May 26
February 24, 2015
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H-4 nonimmigrants will soon be eligible to apply for work authorization if their H-1B spouse has a long-pending permanent residence case. USCIS will begin to accept applications from eligible H-4 spouses on May 26, 2015, according to a long-awaited final regulation that was published in the Federal Register on February 25, 2015.
Which H-4s Are Eligible for Work Authorization?
An H-4 will be eligible to apply for work authorization if his or her H-1B spouse (1) has an approved Form I-140 immigrant worker petition; or (2) has received a one-year extension of H-1B status beyond the sixth year under the American Competitiveness in the Twenty-First Century Act (AC-21), based on a filed I-140 or labor certification. H-4 children are not eligible for work authorization.
Spouses who are in another nonimmigrant status can apply for a change of status to H-4 if work authorization is desired.
Applying for an H-4 EAD
Eligible H-4s will not receive work authorization automatically. They must file a USCIS Form I-765 application for an employment authorization document (EAD), along with (1) evidence of the spousal relationship to the H-1B; (2) evidence that the H-1B is the beneficiary of an approved I-140 or has received a one-year H-1B extension under AC-21; (3) evidence that the H-1B beneficiary is currently in H-1B status; and (4) evidence that the H-4 nonimmigrant spouse is currently in H-4 status.
USCIS will accept an H-4 EAD application filed concurrently with the H-1B spouse’s Form I-129 application to extend H-1B status beyond the sixth year and the H-4’s Form I-539 extension application. Spouses who are in another immigration status can submit Form I-765 concurrently with a Form I-539 application to change status to H-4. In either case, the EAD application will not be adjudicated until after the extension or change of status is approved, and premium processing for the I-765 will not be available. USCIS will not accept H-4 I-765s filed concurrently with a Form I-140 immigrant worker petition.
H-4s cannot begin working until their I-765 is approved and they receive a USCIS employment authorization document (EAD). Once approved, the EAD should be valid through the expiration of their period of stay, up to three years. The EAD serves as evidence of eligibility to work lawfully in the United States and allows the holder to work for any U.S. employer. It can also be used to obtain a U.S. Social Security Number.
What This Means for Employers and Foreign Nationals
The rule – which has been in development since 2011 – means that eligible H-4s are no longer required to remain unemployed throughout the often-lengthy wait for an employment-based immigrant visa. The rule is a key component of the Obama Administration’s initiative to help the United States retain highly skilled foreign professionals and spur continued economic growth.
We expect that USCIS will soon provide additional information about the H-4 EAD application process. We will notify you as soon as that occurs. If you have any questions about the regulation or your organization wishes to identify H-1B employees whose spouses may be eligible for work authorization under the new rule, please contact your designated Fragomen professional.
