March 5, 2015 –
Employment eligibility for spouses of H-1B nonimmigrants seeking employment-based lawful permanent residence

On and after May 26, 2015, the United States Citizenship and Immigration Services (“USCIS”) will begin accepting applications for employment authorization from eligible H-4 dependent spouses of H-1B workers.

H-4 dependent children, and dependent spouses of principal beneficiaries in E-3 or H-1B1 status, are not eligible for this benefit. Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

1. Are the principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140); or
2. Have been granted H-1B status in the United States under section 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 (collectively referred to as “AC21”). AC21 permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the six-year maximum limit on their H-1B status.

To obtain employment authorization, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting documents and the required filing fee of $380.00. Once USCIS approves the application and the applicant has physically received the EAD card, the applicant may begin working in the United States.

The EAD provides for open work authorization. The period of EAD validity is expected to coincide with the applicant’s remaining authorized period of stay in the U.S. DHS is in the process of revising its regulations to allow for the concurrent filing of an EAD application by eligible H-4 dependent spouses with an application to extend nonimmigrant status.

This new rule is intended to reduce the economic burden that H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status and thereby to attract and retain more skilled workers who benefit the U.S. economy. As a consequence of the availability of this new benefit, employers might expect additional requests from H-1B employees for sponsorship for permanent residence.

Amended regulation: Employment Authorization for Certain H-4 Dependent Spouses

Press release: DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence

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