The U.S. Department of Homeland Security has finalized the long anticipated amendment to the Federal Regulations to allow certain spouses of H-1B workers to apply for employment authorization.
Who does this new rule apply to:
The new rule applies only to nonimmigrants who are:
1) Currently in lawful H-4 status, and
2) Currently married to H-1B workers who in turn are also in valid H-1B status, and
3) The principal H-1B worker is the beneficiary of either:
A) Approved I-140 immigrant petition, or
B) Approved H-1B petition that was filed under §106(a) and (b) of the American Competitiveness in the 21st Century Act (AC21).
In essence, this rule applies to the H-4 spouses of two classes of H-1B workers. The first class includes beneficiaries of I-140 immigrant petitions, filed and approved at any time, regardless of whether the I-140 petition was approved within the initial six years of authorized H-1B status or during the additional extension period authorized under Section 104(c) of AC21. The second class includes workers who have pending labor certification applications or I-140 immigrant petitions filed at least 365 days prior to reaching the maximum authorized six year H-1B limit, and who have also already extended their H-1B status beyond the initial six year limit under Sections 106(a) and (b) of AC21. The new rule applies only to H-4 spouses of H-1B status holders. It does not apply to H-4 spouses of principal beneficiaries in H-1B1, H-2A, H-2B or H-3 status.
Validity of H-4 spouse employment authorization documents
USCIS has confirmed that the validity period of employment authorization documents issued to H-4 spouses will match the H-4 authorized period of stay, e.g. it will be up to three years. If the principal H-1B fails to maintain status and/or the H-4 spouse falls out of status then USCIS may deny newly submitted or revoke already approved employment authorization document applications.
When will the new rule go in effect
USCIS will start accepting employment authorization applications from eligible H-4 spouses on May 26, 2015. To expedite approval, spouses of H-1B workers may file employment authorization applications concurrently with their H-4 extension or change of status applications and the principal’s H-1B petition. EAD applications are not eligible for premium processing. In practice, however, USCIS frequently approves employment authorization applications that are concurrently filed with premium processing eligible cases at the same the primary case is approved.
How to apply
Employment authorization for H-4 spouses is not “incident to status” – this means that they must proactively apply and receive an employment authorization document before they become authorized to work. The applications must include evidence that the principal and the spouse are currently married, and they have maintained lawful immigration status. Unlike other employment authorization application classes, H-4 spouses will initially be able to submit only paper applications. USCIS is expected to allow online filing for such applications in the near future.
How early may H-4 spouses apply to renew their employment authorization documents
USCIS does not typically accept EAD renewal applications that are filed more than 120 days before the current expiration date. However, USCIS has indicated they would accept EAD applications filed concurrently with H-4 extension applications within 180 months ahead of the expiration date.