H-4 Spouses of Certain Nonimmigrants Can Soon Apply for Employment Authorization

March 6, 2015

Effective May 26, 2015, H-4 dependent spouses of certain H-1B nonimmigrants may finally file for work authorization. This benefit is not available to all H-4 dependents, however.

To be eligible for employment authorization, the H-4 dependent must be a spouse (H-4 children are not eligible) who is married to an H-1B nonimmigrant seeking lawful permanent residence who is the principal beneficiary of an approved Form I-140 or an Immigrant Petition for Alien Worker; or has been granted H-1B status beyond the six-year limit for admission to the United States, due to being a beneficiary of (1) an employment-based (PERM) labor certification application or (2) an employment-based immigrant petition (Form I-140), if either were filed at least 365 days prior to reaching the end of their sixth year of H-1B status.

To apply for employment authorization, the H-4 spouse will need to file Form I-765. This form requires a $380 filing fee as well as several documents that must be included as evidence, which will be identified in the document instructions. The I-765 also can be filed concurrently with a request to change to or extend H-4 status (Form I-539).

After U.S. Citizenship & Immigration Services (USCIS) approves the I-765, the spouse will receive a Form I-766 Employment Authorization Document (EAD). Once the EAD is received, the H-4 spouse may begin to work in the United States. The EAD allows for unrestricted employment, meaning that the holder can work any job, part-time or full-time, in any field or position, and for any employer. EADs that are approved will be issued for the H-4 spouse's remaining authorized period of admission, which may be as long as three years.

Eligible H-4 dependent spouses may begin applying for employment authorization starting on May 26, 2015. The USCIS will reject applications filed before that time. The standard time frame for adjudication of an EAD is around ninety (90) days.

For H-4 spouses who qualify for this benefit, this is very welcome news. Even if a spouse of an H-1B worker possesses another immigration status (for example, F-1 or O-1), applying for H-4 status and, after May 26, 2015, work authorization can be a real benefit because the EAD is unrestricted and not limited to any specific employer or hours requirement.

Because this allows H-1B families to have a dual income, and because eligibility for this benefit is tied to pursuit of lawful permanent residence on behalf of the H-1B employee, employers also can expect their H-1B workers to push extra hard for green card filings on their behalf at an early time.

Lewis Rice's Immigration Practice Group is committed to meeting each client's dynamic and unique needs. We strive to achieve creative solutions for our clients while minimizing the inconvenience and delay that are often thought to be associated with immigration filings. If you have any questions, or would like help filing for work authorization for an H-4 dependent spouse, please contact one of the co-authors of this article.

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