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Department of Homeland Security extends employment authorization eligibility to certain H-4 dependent spouses of H-1B nonimmigrants

March 3, 2015

On February 25, 2015, the Department of Homeland Security (DHS) issued a regulation that allows certain H-4 dependent spouses of H-1B employees who are seeking employment-based lawful permanent resident status to apply for employment authorization. DHS will begin accepting applications for this benefit on May 26, 2015. It is anticipated that nearly 180,000 applications will be filed in the first year of acceptance.

Who is eligible for this benefit?

Eligible individuals include an H-4 dependent spouse of an H-1B employee who:

  • Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Is the principal beneficiary of either a permanent labor certification (PERM) application or an I-140 petition that was filed on his or her behalf at least 365 days prior to reaching the end of the six-year validity period of H-1B nonimmigrant status .

H-4 spouses who maintain H-4 status and have pending adjustment of status applications will have the option of applying for employment authorization based on either applicable regulation. Further, an H-4 applicant for employment authorization will remain eligible for the benefit even if the H-1B employee changes employers from the original employer for which the I-140 was approved, so long as the I-140 is not revoked or withdrawn.

Application process and validity period

An H-4 spouse may file a Form I-765, Application for Employment Authorization:

1) independently; 2) concurrently with an I-129 petition to extend an employee’s H-1B status and an I-539 to extend dependent H-4 status; or 3) concurrently with only an I-539 if an H-1B extension has already been granted. The concurrent applications can be filed up to six months prior to the expiration of status. The H-1B and H-4 extensions must be approved before the I-765 can be approved. Prior to May 26, 2015, DHS will issue a new Form I-765 with instructions that will include information on the types of evidence that will be acceptable to show eligibility for the benefit.

Once the H-4 spouse receives an Employment Authorization Document (EAD card), he or she may begin working in the United States. The EAD card will be valid for the period of the H-4 spouse’s nonimmigrant status, and therefore may be valid for up to three years. DHS may revoke the H-4 spouse’s EAD if the H-1B employee is terminated or if the H-1B employee or

H-4 spouse otherwise fails to maintain lawful nonimmigrant status.

If you have questions regarding the information in this alert or would like assistance in filing for this benefit, please contact one of our Business Immigration attorneys.