Certain H-4 Dependent Spouses now Eligible for Employment

 

Changing H-4 Visa Status

On November 20, 2014, President Barack Obama addressed a key change to long standing practice for H-4 visas during his Immigration Reform Speech. In his speech, he pledged to extend the eligibility for employment to certain H-4 dependent spouses. In the past, H-4 dependent spouses did not have the authorization to work in the United States while their spouses were on H-1B visas. Now, the Obama Administration is looking to change this system in order prevent certain H-4 visa holders from being discouraged, while simultaneously providing an opportunity for U.S. economic growth.

 

How to Qualify for H-4 Employment Eligibility

The U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), is amending this procedure so that certain H-4 dependents can accept employment in the United States. However, this change in policy will not apply to all H-4 dependents, but instead only certain H-4 dependents who are eligible under the following two categories:

(1)   H-4 visa holders that are the dependent spouse of an H-1B visa holder who is the  beneficiary of an approved I-140, Immigrant petition for Alien Worker; or

(2)  H-4 visa holders that are the dependent spouse of an H-1B visa holder who has extended H1B status beyond six years based on the American Competitiveness in the Twenty-First Century Act (AC21). This Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B visa status.

Under the new rule, these are the only two categories under which an H-4 dependent spouse is eligible for H-4 employment authorization. Further details on these two categories are provided below:

If eligibility is based on an approved I-140:

  • All that is required is that the H1B spouse be the beneficiary of an approved immigrant petition (I-140 form). There are no other requirements or restrictions.
  •  The I-140 petition approved for the H1B spouse can be in any employment-based category for which the I-140 is utilized (EB-1, EB-2, EB-3)
  • It does not matter how much time the H-1B worker or H-4 spouse have spent in the United States.
  • It is also not necessary for the H-1B worker to work for the employer that filed the I-140 petition.
  • The I-140 does not have to have been approved for any minimum length of time.

 

If eligibility is based on H-1B status beyond the 6 years through AC-21:

  • The H-4 spouse is only eligible to apply for an EAD under the new rule if the principal spouse has obtained an H1B extension beyond the six-year limit pursuant to specific provisions of AC21, specifically 106(a) and (b) or AC21.
  • Eligibility for these one-year extensions is based on the H1B spouse being the beneficiary of either a PERM labor certification application or an I-140 immigrant petition that was filed at least 365 days prior to the end of the sixth year of H1B status.
  • In order to be eligible for employment authorization under the category, it is not necessary for the PERM labor certification or the I-140 of the principle spouse to have been approved. However, it is necessary for either the PERM labor certification or I-140 to still be “alive,” meaning not having received a final denial or revocation decision.

Under this new rule, the eligible H-4 dependent spouses must file Form I-765, the Application for Employment Authorization, with all the supporting evidence and materials needed. The application is accompanied by a $380 fee. Once the USCIS approves the I-765 document and the H-4 dependent spouse receives an EAD, he or she will be able to begin working in the United States.

The USCIS will start to accept applications on May 26, 2015. The USCIS will not accept applications any earlier and any applications submitted before May 26, 2015 will be rejected. Individuals are therefore encouraged to wait until May 26, 2015 to submit an application to the USCIS, and to avoid anyone who offers assistance in submitting this form before May 26, 2015.

Once the USCIS begins to accept these applications, the standard timeframe for adjudicating these cases is expected to be approximately 90 days. However, the processing time will likely be longer for cases in which the applicant is requesting an extension or change of status concurrently with the EAD application. Notably, premium processing is not available for EAD applications. However, there is not cap imposed on the H-4 EADs, so this should not cause any alarm or panic. As long as the application is submitted with the filing fee and support documents necessary, it will be processed and should be approved. EADs that are approved will be issued for a validity period that matches the H-4 spouse’s remaining authorized period of admission, which may be as long as three years.

 

The EAD and Supporting Documents

This EAD provides unrestricted employment authorization. This means it can be used to work full time or part time for any employer in any field or position. There is also no educational requirement in order to be eligible for the EAD. However, children who hold H-4 status, even those who are old enough to work, are not eligible to apply for employment authorization under the new rule.

In addition to the I-765 application and accompanying filing fee, USCIS will also require some support documentation in order to determine eligibility. The required support documents for both eligibility categories are provided below:

If eligibility is based on the H-1B spouse being the beneficiary of an approved I-140, the following documentation will be needed:

  • A copy of the I-140 approval notice
  • If this is not available, the U.S. Citizenship and Immigration Services (USCIS) may consider secondary evidence, such as the receipt number for the approved I-140 and/or evidence that the H1B worker has been granted an extension of status beyond the six-year limit.
  • Note that if the I-140 was approved, but then withdrawn by the employer, the H-4 spouse may potentially still qualify if the H1B worker has been approved for an extension of status beyond six years under the applicable AC21 provisions.

If eligibility is based on the principal spouse’s extension of H1B status under AC21, the primary documentary evidence of eligibility more flexible. This documentary evidence can include:

  • A copy of the H1B spouse’s passport
  • Prior I-94 cards
  • Prior H1B approval notices,
  • Copies of pay stubs that would tend to establish that the H1B spouse has been granted an extension of status beyond six years.
  • Proof of Pending Perm and/or Pending I-140

 

Why This Matters

Giving H-4 dependent visa holders the opportunity to work has many benefits for their families and for the United States economy. The ability for both H-1B and H-4 visa holders to work will promote stability and a better quality of life for their families. It also incentivizes H-1B visa holders to continue seeking lawful permanent residence, enabling them to permanently contribute to the United States economy.

In addition, this new rule will promote sustainable economic growth in the United States. This change will prevent disruption to U.S. businesses which employ H-1B employees, by encouraging H-1B employees to stay in the U.S. and seek employment-based lawful permanent residence. By allowing H-4 dependents employment authorizations, a burden is lifted for those individuals and this will in turn enables H-1B nonimmigrants to continue making entrepreneurial contributions to improve job creation and expansion in the U.S. This rule works to make the U.S. more receptive to nonimmigrants, which is critical when competing countries have more relaxed immigration laws to attract highly skilled and educated workers.

In all, this change in immigration policy is a progressive and beneficial step for the U.S. economy and current and future H-1 visa holders alike. This step will help H-1B nonimmigrants have greater stability within the U.S. as they seek lawful permanent residency, and it will allow U.S. businesses to grow, creating more jobs and enriching the U.S. economy.

 

Sources: USCIS

 

For more information, see USCIS’ press release