The Department of Homeland Security (DHS) will finally extend employment eligibility for certain H-4 dependent spouses of H-1B nonimmigrants who have applied for lawful permanent resident (LPR) status effective May 26, 2015. This action has been long awaited by both eligible H-4 spouses as well as employers as this broadens the pool of employment authorized professional workers for many difficult to fill jobs that have been adversely impacted by H-1B visa limits. USCIS estimates that as many as 179,600 H-4 dependent spouses may initially be eligible for employment authorization under this rule and that in subsequent years as many as 55,000 per year may be eligible for H-4 spouse employment authorization.
Which Spouses of H-1B Visa Holders Are Eligible for Employment Authorization?
H-4 visa holders eligible for employment authorization are spouses of H-1B visa holders who have:
- APPROVED I-140 Petition: H-4 spouses of H-1B visa holders who are the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker, or
- H-1B VISA EXTENDED BEYOND 6 YEARS: H-4 spouses of H-1B visa holders who have been granted an AC21 extension of their H-1B status beyond the six year limit as they are in the process of seeking lawful permanent residence. U.S. Citizenship and Immigration Services (USCIS) adjudicators may grant an extension of stay under AC21 §106(a) if evidence is provided that:
- A labor certification or I-140 Petition (if exempt from the labor certification) is pending or approved and has not been withdrawn, denied or revoked at the time of filing of the Form I-129 H-1B extension petition; and
- The labor certification was filed with the Department of Labor (DOL) or the I-140 petition was filed with USCIS at least 365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1B status in the United States pursuant to 214(g)(4); and
- The H-1B extension of status and I-129 petition are otherwise approvable.
How Do Eligible Spouses Apply for Employment Authorization?
To obtain employment authorization and receive an Employment Authorization Document (EAD), eligible H-4 spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee.
What Specific Documents and Fees Are Needed To Apply?
- Form I-765 application for a work permit.
- Filing fee in the amount of $380 for the I-765.
- Evidence the applicant is in H-4 status, or an I-539 applying for change of status to H-4.
- Filing fee in the amount of $290.00, if filing for a change of status to H-4 or an extension of H-4 status.
- Evidence the H-1B is maintaining status. If the H-4 dependent spouse cannot access the immigration paperwork relating to the H-1B nonimmigrant, secondary evidence can be accepted, although the primary evidence is preferred.
- Evidence the H-1B and H-4 are married to each other and that all prior marriages have been dissolved.
- Evidence that the H-1B has an approved I-140 petition or has filed a PERM application or I-140 petition at least 365 days prior to the sixth year anniversary in H-1B status.
- Evidence of a bona fide marriage to be on the safe side.
When Can Eligible H-4 Spouses Apply for Employment Authorization?
USCIS will begin accepting applications on May 26, 2015. Once the EAD is received by the H-4 spouse, the H-4 spouse may begin working in the United States. Eligible dependent spouses of H-1B visa holders may concurrently request a change of status to H-4 and employment authorization. If accompanied by an H-1B request for change to or extension of H-1B status and premium processing is requested, the H-4 status may be obtained in as little as two to four weeks.
How Long Will EADs Issued to H-4 Spouses Be Valid?
USCIS determines the validity period of EADs at its discretion, however, it is possible that H-4 spouses may be eligible to receive EADs authorized for the same period of time as the H-4 spouse is accorded H-4 status, which can be up to three years in some cases. If the EAD issued expires before the period of time the H-4 spouse is accorded H-4 status, the H-4 spouse should apply for renewal as soon as possible (120 days) in advance of expiration of the original EAD. Please note that the employment authorization would not be granted for any period that exceeds the H-1B visa holder’s approved period of stay.
How Long Will It Take To Receive The EAD?
H-4 Spouses who are eligible for employment authorization may not begin working until their EAD is received. Otherwise, it can take up to 90 days to receive this document after the application Form I-765 Application for Employment Authorization with supporting evidence and the required $380 fee is received by USCIS. There will be no premium processing for dependent H-4 spouse work permits, even if the underlying H-1B and H-4 are premium processed, although there is still a timing advantage to filing premium processing of the underlying H-1B and H-4 as timing when USCIS will review the request for employment authorization will begin earlier. The issuance of a Request for Evidence by USCIS may delay the processing of the application beyond 90 days.
What About Spouses of H-1B Visa Holders Who Do Not Have an Approved I-140 or AC-21 Extension?
The spouses of H-1B workers for whom no I-140 employment based immigrant visa petition or PERM labor certification has been filed or approved cannot obtain H-4 work permits and must still resort to attempting to obtain employment in H-1B or other work-authorized status. Since H-4 work eligibility is not triggered until the H-1B additional events occur; either an approved I-140 or an I-140 or PERM filed at least 365 days prior to the sixth anniversary in H-1B status, the H-4s may still be sitting at home for many years until eligible to work in H-4 status.
When Can An H-4 Spouse Who Is Eligible For Employment Authorization Begin Working?
As with all other EAD work permits, employment is not permitted while the I-765 EAD application is pending, either for an initial EAD or an extension.
Who Will Benefit Most From This Change To H-4 Spouse Employment Authorization?
It is expected that the persons who will benefit most from these provisions are spouses of J-1 physicians who are fulfilling their J-1 waiver commitment of three years, persons born in India and China in the EB2 (employment based second preference) category and all persons in the EB3 (employment based third preference) category born in all countries.
Are There Any "Down Sides" To This New Rule?
For the H-4 spouse to be eligible for employment authorization, the H-1B worker must have an I-140 employment based immigrant visa petition approved or must be granted an extension of H-1B status beyond the six year limit based on filing a PERM or I-140 more than 365 days prior to the sixth year anniversary in H-1B status ( the "filing rule"). Thus, in the latter case where the “filing rule" is relied on for H-4 spouse work authorization, USCIS must approve the waiver of the six year limit by granting the H-1B extension before the H-4 may apply for work permission. Given that H-1B status is granted in only one year increments under the “filing rule", the H-1B will likely be forced to premium process the AC21 extension for an extra $1225.00 filing fee and the H-4 will likely obtain a maximum of nine months of employment with the EAD, greatly reducing employment opportunities when an employer can see only a few months of work authorization with extensions dependent on complex variables relating to the H-1B worker.
What Should H-4 Spouses Who Are Eligible For Employment Authorization Do Now?
To minimize delays, eligible spouses who are interested in obtaining employment authorization should contact their Maggio + Kattar attorney to prepare required evidence and the Application for Employment Authorization so this may be filed without delay in May.