UPDATED 5/20/2015: Employment Authorization for H-4 Dependent Spouses of H-1B Immigrants

UPDATE:  On May 20, 2015, USCIS published information to assist eligible H-4 dependent spouses who want to apply for employment authorization under the Employment Authorization for Certain H-4 Dependent Spouses final rule.

This updated information is now available on the Employment Authorization for Certain H-4 Dependent Spouses Web page as well as the list of Frequently Asked Questions that USCIS has compiled since they announced the H-4 rule in February.

USCIS reiterates that no one can apply for employment authorization under this rule until May 26, 2015.  Again, USCIS will not accept any Form I-765, Application for Employment Authorization requesting employment authorization based on H-4 status until this H-4 rule takes effect May 26, 2015. If you submit a Form I-765 before May 26, 2015, USCIS will reject your application and return it and the filing fee to you.

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On February 24, 2015, U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced that the Department of Homeland Security (DHS) is extending eligibility for employment authorization to H-4 dependent spouses of certain H-1B nonimmigrants who have started the process of seeking employment-based lawful permanent resident (LPR) status. USCIS will begin accepting applications on May 26, 2015.

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who have started the green card process. The H-1B nonimmigrants must:

• Be the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker, or
• Have been granted H-1B status under sections 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 (i.e. AC-21 H-1B extension beyond the six-year limit).

To apply for the Employment Authorization Document (EAD), eligible H-4 dependent spouses must submit:

• Form I-765, Application for Employment Authorization,
• Supporting evidence, and
• $380 filing fee.

Once USCIS approves Form I-765 and the H-4 dependent spouse receives the EAD, he or she may work for any employer in the United States.

Please note that, because this rule is not effective until May 26, 2015, individuals should not submit an application to USCIS before then.

Currently, H-4 dependents are not allowed to work, which often negatively impacts the families of H-1B nonimmigrants by limiting them to one source of income until they can achieve lawful permanent residency, which may take more than 10 years for many cases. This lengthy waiting process can have a detrimental effect on immigrant families that are forced to rely on only one person’s income. Consequently, the retention of highly educated and highly skilled nonimmigrant workers in the U.S. can become problematic for employers, as nonimmigrant workers feel compelled to leave the U.S. due to the personal and economic hardship of the restrictive immigration process. This new rule benefits H-1B nonimmigrants and their spouses by enabling both of them to work while waiting for green card approval.

By allowing H-4 dependent spouses of principal H-1B nonimmigrants to work as well, DHS aims to lessen the potential economic burden of the H-1B principal and H-4 dependent spouse during the transition from nonimmigrant to lawful permanent resident status. This improvement, in turn, encourages H-1B skilled workers to remain in the U.S., to continue contributing to the national economy, and to not abandon their efforts to become lawful permanent residents. Given the immense contributions these individuals bring to the U.S. economy, including advances in entrepreneurial and research endeavors, retaining these highly skilled and talented workers is essential to overall economic growth and job creation.

Hopefully this positive trend in U.S. immigration reform continues.

For more information, the DHS’ amendment of the regulations can be seen here and the related press release here.