Effective May 26, 2015, the United States Citizenship and Immigration Services agency (USCIS) will begin to issue Employment Authorization Documents (EAD) to qualified H-4 visa status spouses of H-1B temporary worker visa holders. This new permission to work in the US will not require a sponsoring US employer and will not be limited to any specific type of work.
To qualify, applicants will need to show that:
1. They are maintaining H-4 visa status in the US;
2. They are the spouse of someone maintaining H-1B visa status; and
3. Their H-1B spouse either:
a. is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
b. has 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 (AC21).
AC21’s Section 106(a) authorizes H-1B status beyond the normal 6 year limit to beneficiaries of an employment-based immigrant petition or an application for adjustment of status to permanent resident. Section 106(b) provides those same benefits to individuals with an alien employment certification or employment-based immigrant petition pending before the Department of Labor or USCIS for more than 365 days.
To obtain employment authorization, the H-4 spouses will apply to the USCIS on Form I-765, Application for Employment Authorization, with supporting evidence and pay the government’s $380 fee. The USCIS will begin accepting applications on May 26, 2015 and the press release instructs not to file before that date. The H-4 spouse is authorized to work in the US only after receipt of the EAD. USCIS processing times vary, but is typically about 90 days.
Although the USCIS estimates that this new rule will grant employment authorization to a large number of H-4 visa holders, many more H-4 spouses are not eligible due to the third requirement listed above. Although the press release touts how the change will support the US economy and bring US immigration policies more in line with the laws of other countries that compete to attract similar highly skilled workers, this rule is in fact more restrictive than many competing countries and not as generous as even the EAD rules for spouses on E-1, E-2 and L-2 visa status.
The full text of the USCIS press release can be found here.
