Effective May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants may now apply for employment authorization under the new H-4 rule. Specifically, H-1B dependent spouses are eligible to apply if their H-1B nonimmigrant spouse is:
- The principal beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140); or
- Has 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.
H-4 dependent spouses who desire to work in the U.S. must first file Form I-765, (Application for Employment Authorization) and receive an Employment Authorization Document (EAD/Form I-766). Form I-765, Application for Employment Authorization has been revised by USCIS to reflect the new eligibility category, (c) (26), spouse of an H-1B nonimmigrant.
Eligible H-4 dependent spouses may file Form I-765 as:
- A standalone application if they are currently in H- 4 status and do not need to extend this status;
- With Form I-539, Application to Extend/Change Nonimmigrant Status if they are seeking to change to or extend H-4 status; or
- Together with Form I-539 and Form I-129, Petition for a Nonimmigrant Worker if their spouse is seeking H-1B status and they are seeking to change to or extend H-4 status. The 90-day period for adjudicating Applications for Employment Authorization (Form I-765) filed together with Form I-539 will not begin until USCIS has determined whether the applicant is eligible for the underlying H-4 nonimmigrant status, and that the principal is eligible for H-1B status.
In an effort to implement employment authorization for certain H-4 spouses, USCIS announced that, as of May 26, 2015, it has temporarily suspended Premium Processing Services for all H-1B Extension of Stay petitions until July 27, 2015. Specifically, from May 26, 2015 through July 27, 2015 USCIS will not accept requests for Premium Processing for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.
USCIS has made available on its website a list of Frequently Asked Questions pertaining to the new H-4 rule.
For more information see: Employment Authorization for Certain H-4 Dependent Spouses
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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