The Department of Homeland Security (DHS) has implemented a regulatory change that will go into effect May 26th that grants employment authorization benefits to certain H-4 spouses of H-1B nonimmigrants working in the United States. Pursuant to this regulatory change, the U.S. Citizenship & Immigration Services (CIS) has recently published guidance and FAQs that outline the filing process and requirements.

Beginning Tuesday, May 26th, the CIS will accept applications from qualifying H-4 nonimmigrants for an Employment Authorization Document (EAD). To be eligible, the H-4 nonimmigrant must be the spouse of a principal H-1B nonimmigrant who:

  • Is the principal beneficiary of an approved I-140 Immigrant Visa Petition; or
  • Has been granted an extension of H-1B nonimmigrant status beyond the normal six-year limitation on H-1B eligibility under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21).

The CIS has confirmed that EAD applications may be filed concurrently with a request for change of status to H-4 or extension of H-4 status, but the CIS will only adjudicate the EAD application after the H-4 has been adjudicated. This could result in a lead-time of up to six months from the time of filing until the EAD card is issued. H-4 nonimmigrants must receive the EAD card before they will be authorized for employment.