Spouses of Certain H-1B Visa Holders Will Soon be Eligible for Work Authorization in the US

The Department of Homeland Security (DHS) has published a long-awaited final rule extending eligibility for employment authorization to certain H-4 dependent spouses (not children) of H-1B nonimmigrants who are seeking employment based lawful permanent resident (LPR) status. These H-4 dependents, like dependent spouses of E-1, E-2, E-3 and L-1 visa holders, will soon be able to apply for an Employment Authorization Document (EAD) and lawfully work for any US employer. The rule was published on February 25, 2015 and takes effect on May 26, 2015.

This change does not apply to all H-4 visa holders. Only those married to H-1B nonimmigrants who are principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140), or have been granted H-1B status in the United States under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act . An H-1B nonimmigrant is eligible for an extension of stay pursuant to AC21 provided that they are the beneficiary of a labor certification application or a Form I-140 petition that has been filed at least 365 days prior to the end of their sixth year of H-1B status.

Eligible H-4 dependents will not receive work authorization automatically. They must file a USCIS Form I-765 application for an EAD, along with (1) evidence of the spousal relationship to the H-1B; (2) evidence that the H-1B is the beneficiary of an approved I-140 or has received a one-year H-1B extension under AC-21; (3) evidence that the H-1B beneficiary is currently in H-1B status; and (4) evidence that the H-4 nonimmigrant spouse is currently in H-4 status. The validity period of the EAD will not exceed the duration of H-4 status.

For more information regarding this rule or immigration developments, please contact your principal Squire Patton Boggs lawyer or one of the individuals listed in this publication.