Final H-4 Spouse EAD Rule Announced – Becomes Effective May 26, 2015

After months of waiting and anticipation, USCIS has finally announced that effective May 26, 2015, USCIS will begin accepting applications for I-765 Employment Authorization Document (EAD) applications by certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.

Who is Eligible to Apply for EAD?

H-4 spouses who are eligible for the EAD under this rule are:

• spouses of H–1B workers if the H-1B worker is a beneficiary of an approved Immigrant Petition for Alien Worker (Form I–140);  or
• spouses of H–1B workers if the H-1B worker has been granted an extension of their authorized period of admission in the United States under the section 106(a) and (b) of American Competitiveness in the Twenty-first Century Act of 2000 (AC21).    Sections 106(a) and 106(b) of AC21 allow H-1B status extension if the H-1B worker is the beneficiary of a PERM Labor Certification or an I-140 petition which has been pending for more than 365 days.

It should be noted that the rule explicitly states that H-4 dependent children will not be eligible for EAD under this rule.

Mechanics of the H-4 Spouse EAD Application Process

The rule would add eligible H-4 spouses to the list of nonimmigrants eligible to apply for an employment authorization document (EAD).    The application will be filed using the current Form I-765, together with filing fees ($380 as of the date of this article), photos and supporting documents to establish eligibility for this new class of EAD.

Earliest Filing Date.   The earliest date USCIS will accept EAD applications pursuant to this rule is May 26, 2015.    Applications filed before this date will be rejected.       However, applications can be prepared in advance and our office will be happy to do so for a timely filing as soon as the filing window opens on May 26, 2015.

EAD Validity and Extensions.   As with most other EAD classes, employment would be authorized only after the EAD has been approved and only during the validity of the approved EAD document.    The  rule mentions that USCIS is considering that such EADs will be issued with validity of up to two years, recognizing that even if USCIS were to issue a longer EAD validity period, it cannot exceed the applicant H-4 spouse’s H-4 status validity period.      Extensions can be filed up to 120 days in advance of expiration of the current EAD term (and assuming continuing H-4 status and extension eligibility) and EAD extensions can be (and perhaps should be) filed together with H-4 status extensions.

Concurrent H-4 Status and H-4 EAD Applications Permitted.    The rule allows specifically for the concurrent filing of I-539 applications seeking to either change to H-4 status or to extend H-4 status together with the I-765 EAD application.   This is great news because it allows for the concurrent processing of an H-4 status with a work permit application.    Without the concurrent filing option, an H-4 applicant would have to wait for the H-4 status to be approved, and then file a separate EAD application and wait for another 2-3 months for the actual work authorization.     In cases where this is possible, we encourage concurrent filing of the I-539 H-4 status application and the I-765 EAD applications.

Documentation of Eligibility.   Since EADs under this rule would be issued only to a limited set of H-4 spouses, the EAD application would require enhanced documentation to show eligibility.    In addition to the application form, fee and required passport photos, the EAD application would seek evidence that the H-1B nonimmigrant spouse is beneficiary of an approved I-140 petition or has PERM Labor Certification or I-140 petition filed more than 365 days prior; in addition to evidence of the applicant’s H-4 status validity and duration.

Full Text of the Rule

For those of our clients and readers who want to dig into the rule, it can be accessed online.

More Information and Opportunity to Ask Questions

Our office will be holding a free webinar on this rule, its requirements and challenges.   The webinar is scheduled for Tuesday, March 3rd at 1 pm eastern time.   Please register early to claim your spot – registration and attendance are free but space is limited.

H-4 Spouse EAD Attorney Service Filing Quote

Our office has been monitoring closely this rule since it was announced in May 2014 and we are ready to start accepting applications for filing on or after May 26, 2015.     If you would like one of our attorneys to review your case and provide a free and no-obligation quote for our services, please complete this brief request H-4 Spouse EAD attorney quote form.

Conclusion

We welcome DHS’s publication of the new H-4 spouse EAD rule and we believe that many eligible H-4 spouses would benefit from a permission to work while waiting for their spouses’ green card to be approved (several years in some cases).

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.