New DHS Rule Extends Eligibility for Work Authorization to H-4 Dependent Spouses of Certain H-1B Workers Starting May 26, 2015

Date   Mar 3, 2015

In a historic move, effective May 26, 2015, the Department of Homeland Security ("DHS") will allow, for the first time, H-4 spouses of H-1B workers who are pursuing permanent residence ("green cards") to apply for work authorization.

Executive Summary: In a historic move, effective May 26, 2015, the Department of Homeland Security ("DHS") will allow, for the first time, H-4 spouses of H-1B workers who are pursuing permanent residence ("green cards") to apply for work authorization. DHS recognizes that the inability of H-4 spouses to work, through what is often a very lengthy green card process for the H-1B worker, may create financial and personal stressors for a household which can make the prospect of living in the U.S. long term unattainable. Given that such financial constraints can cause an H-1B worker to abandon his or her green card process and return overseas, resulting in the loss of talent and disruption to US businesses, DHS hopes that the change will encourage H-1B nonimmigrants to remain in the U.S. and see the process through to the end. In this way, DHS supports the retention of highly skilled H-1B workers and ensures that this talent remains in the U.S. to benefit our economy as opposed to the economy of a competitor nation. DHS estimates the amendment will result in as many as 179,600 H-4 dependent spouses being eligible to apply for employment authorization during the first year of implementation. As many as 55,000 H-4 dependent spouses could be eligible to apply for employment authorization each year thereafter.

Which H-4 Spouses are Eligible for Work Authorization?

An H-4 spouse is eligible for work authorization if the H-1B worker either:

(1) Has an approved Immigrant Petition for Alien Worker (Form I-140); or

(2) Has been granted H-1B status beyond the six-year maximum time limit based on the fact that his/her green card process has progressed according to the American Competitiveness in the Twenty-first Century Act of 2000 (referred to as "AC21") sections 106(a) and (b). These AC21 sections lift the six-year H-1B limit for H-1B workers for whom more than 365 days has elapsed since an employer filed a Labor Certification Application or Immigration Petition (Form I-140) on his or her behalf.

What is the Filing Procedure?

On May 26, 2015, USCIS will begin accepting applications for employment authorization from eligible H-4 spouses (DHS Form I-765 Application for Employment Authorization).  Applications must be accompanied by evidence supporting eligibility and the $380 filing fee.  The new regulation requires USCIS to process H-4 spousal work authorization applications within 90 days. The H-4 spouse may not begin to work until the Employment Authorization Document ("EAD") has been received.

The H-4 spouse may file the EAD application (Form I-765) either by itself or concurrently with an application to extend or change to H-4 status (Form I-539 to Extend/Change Nonimmigrant Status). In the case of a concurrent H-4/EAD filing, the 90-day EAD processing window will not begin until the H-4 application has been approved. Although EAD applications are not eligible for expedited "Premium Processing," the new rule permits H-4/EAD applications to be filed concurrently with the H-1B worker's extension petition, which is eligible for expedited processing. In this way, the 90-day EAD clock could begin in as soon as 15 days if the EAD application is concurrently filed with an expedited H-1B petition. The earliest point at which the H-1B/H-4/EAD concurrent filing may be submitted is six months prior to the H-1B worker's current status expiration date.

When can an eligible H-4 spouse file the EAD application (Form I-765)?

On or after May 26, 2015. Applications submitted prior to that date will be rejected.

How long will the H-4 EAD be valid?

The validity period of the EAD will match the period of the H-4 status, which could be as long as three years depending on the H-1B beneficiary's green card processing stage.

The Bottom Line    

The Final Rule should be welcome news for both U.S. businesses employing H-1B visa holders as well as H-1B visa holders who are pursuing U.S permanent residence. Employers will benefit because the Rule encourages talent retention. H-1B workers who have committed to becoming U.S. permanent residents will benefit from the opportunity for additional household income during the lengthy waiting period for an available visa number. 

H-1B employer sponsors should anticipate questions regarding their willingness to pay the filing fees and attorney's fees associated with an H-4 spousal EAD application and whether they will pay for premium processing of H-1B extension petitions to facilitate speedier processing of the H-4 spouse's original work authorization application and future extensions. If you have any questions regarding the Final Rule or other business immigration issues, please contact Geetha Adinata, or Charles Roach,, all of whom are members of FordHarrison's Immigration practice group. You may also contact the FordHarrison attorney with whom you usually work.