USCIS Issues Guidance Ahead of Opening Day of H-4 Spouse Work Authorization Program

 

On Tuesday, May 26, USCIS will begin to accept applications for employment authorization from H-4 nonimmigrants whose H-1B spouses have an approved Form I-140 immigrant worker petition or have received an extension of their H-1B status beyond the six-year maximum based on a filed labor certification or I-140 petition. In advance of the opening of the program, USCIS has issued filing guidelines and an FAQ for prospective applicants. Highlights of the new guidance and additional information about eligibility are below.

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 statutory six-year maximum 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. H-4s with a pending application for adjustment of status to permanent residence are eligible to apply for an EAD under the new program.

Applying for H-4 Work Authorization

Eligible H-4s must file USCIS Form I-765, the application for an employment authorization document (EAD), along with evidence of their spousal relationship to the H-1B, evidence that the principal and dependent spouse are in H-1B and H-4 status respectively, and evidence that the H-1B has an approved I-140 or has received a one-year H-1B extension under AC-21.

A spouse’s EAD application can be filed at the same time as the H-1B’s application to extend status beyond the sixth year. Spouses in another immigration category can submit an EAD application along with an application to change status to H-4. USCIS will not accept an H-4 EAD application filed with a Form I-140 petition.

When Can an H-4 EAD Application Be Filed?

H-4 EAD applications will be accepted no earlier than Tuesday, May 26. Those that arrive at USCIS before next Tuesday will be rejected and returned.

As a practical matter, USCIS has not yet specified which of its Service Centers and/or lockbox addresses will accept most H-4 EAD applications. Until the agency does so, H-4s and their immigration counsel should not submit EAD applications. Filing at an incorrect location could cause the application to be rejected.

How Long Will It Take USCIS to Process an H-4 EAD Application?

USCIS is likely to receive a very large number of H-4 EAD applications in the opening weeks and months of the program. As such, applicants should expect processing to take longer than the 90 days contemplated in USCIS regulations. Premium processing is not available for H-4 EAD applications.

If an H-4 EAD application is submitted with an H-1B spouse’s application for an extension of stay, processing times are likely to be even longer. USCIS will not adjudicate the EAD until the H-1B extension is approved. As we have reported, premium processing will be suspended for H-1B extensions of stay through July 27.

Once approved, an H-4 EAD should be valid through the expiration of the H-4’s period of stay, up to three years.

Impact of International Travel on Pending EAD Applications

An H-4 spouse must be present in the United States in valid status when his or her EAD application is filed, but can travel abroad and reenter the United States without jeopardizing the pending application.
Spouses changing status to H-4 and filing an EAD application must remain in the United States until the change of status is approved. Traveling while the change of status is pending will cause it to be deemed abandoned. The foreign national would need to refile both applications to receive work authorization.

Eligible Employment Under an H-4 EAD

H-4s with a valid EAD can work for any U.S. employer or engage in self-employment, but may not work until their Form I-765 is approved and they receive their EAD.
The EAD is acceptable proof of identity and work authorization for Form I-9 employment eligibility verification purposes. It can also be used to obtain a U.S. Social Security Number.

What This Means for Employers and Foreign Nationals

The highly-anticipated H-4 EAD program means that eligible spouses are no longer required to remain unemployed throughout the often-lengthy wait for employment-based permanent residence. But in the opening weeks and months of the program, applicants should expect delays as USCIS deals with an initial surge of EAD applications. The agency plans to allocate additional resources to EAD processing, but some applicants – notably those whose H-1B spouse is applying for an extension of stay – could wait longer for work authorization. USCIS has helpfully clarified that H-4s in valid status can travel internationally while their application for work authorization is pending, which should alleviate some of the burdens of lengthy processing times.