Immigration and firm news

USCIS To Begin Accepting H-4 EAD Applications

Starting May 26, 2015, USCIS will begin accepting H-4 work authorization (EAD) applications from certain spouses of H-1B workers.  This is a regulatory amendment that was published as a final rule in the Federal Register on February 29, 2015.  USCIS published the H-4 notice of proposed rulemaking in May 2014 and finalizing it was part of the executive actions on immigration that President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of the initiatives to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

Who is Eligible?

  • The H-4 applicant must be the spouse of a principal H-1B beneficiary
  • The H-1B spouse must be the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • The H-1B spouse must have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).

What Evidence is Required?

Besides the I-765 form (use category (c)(26)) and filing fees and two photos, it is important to show each element described above:

Obviously the H-4 applicant should provide proof of H-4 status, proof of the H-1B spouse’s H-1B status and proof of the legality of marriage (and proof of termination of prior marriages).

APPROVED I140: Proof that the H-1B spouse has an approved I140 petition is easy to show by submitting the approval notice.

To use the AC21 status option, it can be a bit trickier.  Here, the H-4 applicant needs to show the H-1B spouse has H-1B status based on EITHER:

FILED PERM: Evidence the H-1B spouse is the beneficiary of a Permanent Labor Certification (PERM) Application that was filed at least 365 days prior to the expiration of the six-year limitation of H-1B stay. This can be shown by submitting a copy of a print out from the Department of Labor’s (DOL’s) website or other correspondence from DOL showing the status of the H-1B nonimmigrant’s Permanent Labor Certification Application along with evidence of the spouse’s H-1B history. If DOL certified the Permanent Labor Certification, it is important to submit a copy of Form I-797 Notice of Receipt for Form I-140 establishing that the Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification.


NON-PERM CASES:  If the permanent residence preference category sought for the H-1B nonimmigrant does not require a Permanent Labor Certification Application with DOL, (e.g., EB-2 National Interest Waiver), the H-4 EAD applicant must show that the H-1B spouse’s Form I-140 was filed at least 365 days prior to the expiration of the six-year H-1B limitation of stay and remains pending.

For How Long Will the H-4 Spouse Receive Work Authorization?

The H-4 EAD should be valid for the duration of the H-4’s I-94.  Generally speaking, the I-94 should have the same validity period as the H-1B spouse’s status; however, there are duration rules related to the validity of one’s passport.  For example, if the passport expires before the maximum allowable time in H-4 or H-1B, CBP may only issue an I-94 that is only valid until the passport expires if one has been traveling. Therefore, it’s a good idea to renew passports early.

Can H-4 Spouses with EADs Work Anywhere?

Yes! They can work for any employer or be self employed or become entrepreneurs!!

What if the H-1B Spouse Loses Status, has an I140 Revoked or other Problems?

The H-1B spouse must continue to maintain lawful H-1B status in order for the H-4 spouse to have lawful status.  If an H-1B or I140 petition is revoked, the H-4 spouse may lose status or lose H-4 work authorization in the latter situation.  The USCIS FAQs, however, suggest there may be some discretion about whether they will revoke the H-4 spouse’s work authorization.

How Long Will it Take To Process EAD Applications?

Stand-alone I765s can take 60-90 days. There is NO premium processing.

What About H-4 New or Extension Petitions?

H-4 spouses can file EAD requests with new H-4 status or extension requests for H-4 status. The H-1B spouse’s petition can be filed concurrently or must be approved first, and a determination must be made that the H-1B spouse qualifies under the scenarios above in order for the H-4 spouse to be eligible for the EAD card (See requirements above). As USCIS may decide EADs only after approving the underlying status, it is possible the EAD validity start date will not match the H-4 start validity date, but the end date of both should be the same.

For more detailed frequently asked questions, see the USCIS FAQ webpage.