H-4 Spouses of H-1B Workers May Apply for Work Authorization Beginning May 26

 H-4 Spouses of H-1B Workers May Apply for Work Authorization Beginning May 26

Certain H-4 spouses of H-1B workers will soon be eligible to apply for work authorization in the United States, if the H-1B spouse has been sponsored for permanent residence and the process has reached specific milestones. U.S Citizenship and Immigration Services (USCIS) will begin to accept Employment Authorization Document (EAD) applications from eligible H-4 spouses on May 26, 2015, according to the final regulation that was published in the Federal Register on February 25, 2015.

Which H-4 Spouses Will Be Eligible for Work Authorization?

An H-4 spouse will be eligible to apply for work authorization if his or her H-1B spouse (1) has an approved Form I-140 Immigrant 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 Immigrant Petition or PERM Labor Certification. H-4 children are not eligible for work authorization.

What are the Requirements to File for an H-4 EAD?

Eligible H-4 spouses must file an EAD application with USCIS on Form I-765 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 Immigration Petition or has received a one-year H-1B extension under AC-21; (3) evidence that the H-1B beneficiary is currently maintaining valid 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 spouse’s Form I-539 H-4 extension application. These applications may be filed six months in advance of the expiration of the H-1B holder’s status. Spouses who are in another nonimmigrant status may submit an EAD application concurrently with a Form I-539 application to change their status to H-4. In either case, the EAD application will not be adjudicated until after the extension or change of status is approved. While premium processing can be requested for an H-1B petition to extend status beyond the sixth year, premium processing for the Form I-765 is not available. Therefore, applicants should expect adjudication of the Form I-765 to take up to three months. USCIS will not accept Forms I-765 for H-4 holders to be filed concurrently with a Form I-140 Immigrant Petition for the H-1B spouse.

H-4 spouses cannot legally begin working until their Form I-765 is approved and they have physically received the EAD card. Once approved, the EAD should be valid through the expiration of the H-4 spouse’s 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 Social Security Number.

What Does This Change Mean for Employers and Foreign Nationals?

The H-4 EAD rule means that eligible H-4 spouses will no longer be required to remain unemployed for often many years while waiting for their green cards to be approved. USCIS will likely provide additional information about H-4 EAD eligibility and the application process soon, and we will update you as soon as we have additional information. If you have any questions about the rule or your company would like to identify H-1B employees whose spouses may be eligible for work authorization under the new rule, please contact your attorney at McCown & Evans for assistance.

Disclaimer

This information is for general use only. You should consult a licensed attorney for legal analysis and advice regarding the specific details of your case.