US Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B non-immigrants who are seeking employment-based lawful permanent resident (LPR) status.  DHS amended the regulations as part of President Obama’s executive order on administrative immigration reforms delivered on November 20, 2014.  The new rule is welcomed at a time when Congress is unable to agree on certain aspects of immigration reform. Similar employment benefits exist for spouses of other non-immigrant visa holders and the development has been anxiously awaited.  The spouse of an E or L visa holder can apply for work authorization under today’s laws, but the spouse of an H-1B non-immigrant worker cannot, and so this new regulation is greeted as a positive start.  With this new rule, the US will gain a generally high-skilled group of people who can start contributing to the economy immediately.  USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years.

Under the existing regulations, the spouse of an H-1B specialty worker is eligible to receive an H-4 visa.  Although the H-4 visa permits the spouse of the H-1B specialty worker to reside temporarily in the United States with his or her spouse, the H-4 visa holder is not authorized to work in the United States.  By permitting employment authorization for certain H-4 spouses, DHS believes that this rule will further encourage H-1B skilled workers to remain in the United States, continue contributing to the US economy, and not abandon their efforts to become lawful permanent residents because their H-4 nonimmigrant spouses will now be able to obtain work authorization.  There are, however, specific limitations to eligibility.

Under the new rule, employment authorization eligibility is limited to the H-4 spouses of H-1B non-immigrant temporary workers seeking lawful permanent residence through employment and who:

  • Are the beneficiaries of an approved I-140 immigrant petition, or
  • Have been granted an extension of stay in the US under the American Competitiveness in the 21st Century Act, which allows H-1B workers seeking lawful permanent residence to remain in the US beyond the legal six-year limit

(It should be noted that the rule explicitly states that H-4 dependent children will not be eligible for employment authorization).

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, and pay the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD).  This EAD application will require enhanced documentation to show eligibility.  USCIS will look for evidence that the H-1B nonimmigrant spouse is the beneficiary of an approved I-140 petitionor has a PERM Labor Certification or I-140 petition filed more than 365 days prior to the expiration of the H-1B six year validity period, in addition to evidence of the applicant’s H-4 status validity and duration.  USCIS will begin accepting applications on May 26, 2015.  Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

While this is one step towards fixing a broken immigration system, we look forward to DHS extending the new rule to all H-4 spouses of H-1B employees regardless of their intent to pursue lawful permanent residency in the United States as soon as practically possible.