Employment Authorization For H-4 Spouses

Overview

On February 25, 2015, the Department of Homeland Security (DHS) issued a new regulation authorizing spouses of certain H-1B employees to apply for employment authorization beginning on May 26, 2015.

Eligibility Requirements

H-4 dependents will be eligible to apply for an employment authorization document (EAD) if their H-1B spouses have been pursuing employment-based permanent residence and have:

  1. An approved I-140 petition; or
  2. A pending labor certification application or I-140 petition (that has not been withdrawn, denied, or revoked) filed at least 365 days before reaching the 6-year H-1B limit.

Application Requirements

To apply for the EAD, the H-4 spouse will need these specific items:

  1. I-765 application for employment authorization (eligibility category is (c)(26));
  2. Filing fee of $380;
  3. Evidence of valid H-4 status or pending change of status to H-4 (copy of H-4 approval notice, receipt for change of status, or H-4 visa with I-94 admission record);
  4. Evidence that H-1B spouse remains in valid status (copy of H-1B approval notice, I-94 record, and employment confirmation);
  5. Copy of marriage certificate;
  6. Evidence that H-1B spouse has approved I-140 petition or labor certification or I-140 petition that was filed at least 365 days before the H-1B 6-year limit.

Concurrent Filing Allowed

The new regulation does not provide for employment authorization automatically and USCIS may take up to 90 days to decide an EAD application.  Once approved, the EAD will be valid only for the duration of the H-4 status.  Because USCIS will accept EAD applications filed concurrently with H-1B/H-4 extensions, submitting the EAD application with an extension of status is a good strategy to qualify for a longer period of employment authorization.

Eligible H-4 spouses would be able to contact a Davis & Goldfarb attorney in early May to prepare the required application for employment authorization.

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