On February 24, 2015, the Department of Homeland Security (DHS) issued a final rule that extends eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status. H-4 spouses who fit the eligibility criteria will be able to apply for employment authorization starting on May 26, 2015.

The final rule defines the eligible H-4 dependent spouses as those married to H-1B nonimmigrants who:

  • are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker, or
  • have 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, which 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 status.

Under the final rule, eligible H-4 dependent spouses will be required to file a Form I-765, Application for Employment Authorization, with supporting evidence and the $380 filing fee. If the application is approved, the eligible spouse will receive a Form I-766, Employment Authorization Document (EAD), which will allow them to work during the period of its validity. According to the final rule, the EAD validity period generally will match the H-4 spouse’s authorized period of admission, up to three years.

The final rule indicates that the Form I-765 Application may be filed concurrently with a request for extension of stay (Form I-539), which may be submitted up to six months in advance of the expiration of stay for H-4 spouses. The 90-day period for adjudicating these I-765 applications, however, will not begin until the companion extension application is approved. We will provide further notice on this development and the process established by DHS to implement it as more information becomes available.