In news that will certainly be welcomed by H-1B non-immigrants and their families, the Department of Homeland Security (DHS) has recently announced that they will soon allow certain H-4 spouses the opportunity to seek employment in the United States.
As part of the president’s sweeping immigration overhaul initiative, starting on May 26 of this year applications for employment authorization documents (EADs) will be accepted from qualifying H-4 spouses of H-1B foreign workers.
The H-4 eligibility extension is widely regarded as an important vehicle for helping H-1B workers awaiting permanent resident status to gain economic relief via creating two-income households.
Additionally, it’s seen as an enticement to persuade highly-valued foreign workers, especially those making valuable contributions in entrepreneurship and science crucial to a thriving economy, to put down roots here in the U.S. Preliminary estimates suggest that 179,000 EAD applications could be received the first year, underscoring how genuinely needed and long overdue this legislation was.
Eligibility Requirements
In order to be eligible for EADs, the H-4 applicant’s H-1B spouse must fall under one of two categories:
- They must be the principal beneficiaries of an approved I-140 form
- They were granted H-1B status extensions under sections 106 (a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)
If eligible, H-4 individuals must file Form I-765, Application for Employment Authorization, and present all supporting evidence and documentation required. Additionally, there will be a $410 fee required to obtain a Form I-766, which acts as the official authorization of employment eligibility in the United States.
Category Overview
As mentioned, there are two separate categories that the principal H-1B worker can fall under for the H-4 spouse to be eligible to apply for EADs. Each eligibility category is further broken down as follows:
I-140 Approval Status
The first category is fairly straightforward. If the H-1B worker is the beneficiary of an approved I-140 form, then the H-4 spouse is eligible. There are no other restrictions. In addition, it does not matter which employment category the I-140 was granted under, how much time either the H-1B worker or the H-4 spouse has been in the United States, nor whether the H-1B worker is still employed by the original sponsoring employer.
H-1B Status Extension Past Six Years
In this category, the H-4 spouse eligibility for an EAD is based on the H-1B worker being granted an extension beyond the customary six years in accordance with provisions 106 (a) and (b) of the AC21. These provisions deal primarily with H-1B workers extending their status once they reach the normal six-year cap.
Additional Information
Applications submitted before May 26, 2015 will not be accepted. Also, while the United States Citizenship and Immigration Services (USCIS) office will accept the H-1B worker’s I-140 approval notice as proof of eligibility, additional supporting evidence may be allowed in its absence. Most cases will be resolved within 90 days.
Additionally, foreign employees who are already in H-1B status but faced with a longer wait due to either their birth country or being in the third preference classification may be eligible to extend their H-1B status beyond the six-year maximum while they wait for their wait time to elapse.
For more information on employment eligibility for H-4 immigrant spouses, contact Lightman Law Firm at (212) 643-0985 or submit a consultation request online.
Lightman Law Firm was recently honored as New York’s 2014 Immigration Law Firm of the Year by Acquisition International. Additionally, founding attorney, Douglas Lightman, was named a “Rising Star” by SuperLawyers.com. Lightman Law Firm also carries a 4.9 rating on Google Reviews.
