Effective May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin processing applications to grant employment authorization for certain H-4 dependent spouses of H-1B nonimmigrant workers. The application for employment authorization (Form I-765) must be submitted to USCIS, in paper form only, with the filing fee of $380 and supporting documents showing eligibility for work authorization.
Eligibility for this benefit is limited to spouses of H-1B workers who have started the employment-based lawful permanent resident (“green card”) process. To obtain an H-4 employment authorization document (EAD), the H-1B spouse must either: 1) be the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140), or 2) have been granted H-1B status beyond the six-years based on Sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21) (i.e. have a PERM labor certification filed more than 365 days before the expiration of the initial six-year H-1B period or have an I-140 petition pending for 365 days).
There are several factors to consider before an H-4 spouse should apply for the EAD. One, an applicant must include evidence showing that he or she is currently in H-4 status and that the H-1B worker also is maintaining their H-1B status. Two, employment authorization is limited to spouses, not H-4 dependent children. Three, the EAD will be valid only for the current period of authorized H-4 status. Four, the H-4 spouse is not authorized to work until they receive the approved EAD. Five, once granted employment authorization, it is unrestricted and the H-4 spouse can work for any employer.
Additionally, premium processing of the I-765 application is not available, and current processing times for EADs are approximately three to four months. However, USCIS announced that it is suspending premium processing of H-1B petitions requesting an extension of status for current H-1B workers in order to focus on processing H-4 EADs. This may help reduce current processing times. Further information regarding the H-4 EAD process has been issued by USCIS and is available here.
There also are uncertainties regarding continued eligibility for the EAD after it has already been issued. Bear in mind that an approved EAD may become invalid if the H-1B worker fails to maintain status. By operation of law, the spouse also fails to maintain H -4 status, and USCIS may seek to revoke the EAD. Further, if the H-4 spouse is eligible for the EAD based on an approved I-140 petition, but that petition is subsequently withdrawn by the employer, the H-4 spouse may still qualify for this benefit provided the H-1B worker has been approved for an extension of status beyond six years.
Finally, there is a lawsuit currently pending in the District of Columbia federal district court (Save Jobs USA v. DHS) challenging the H-4 EAD rule. As of today, no decision has been issued by the court, but if it grants the injunction requested by the plaintiffs this would stop, at least temporarily, the filing of H-4 EAD applications.