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H-4 EAD Rule

On February 24, 2015, U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced H-4 EAD Rule i.e. effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.H-4 EAD Rule, (c) Jay Terkiana, Immigration Attorney

Director León Rodríguez stated: "Allowing the spouses of these visa holders to legally work in the United States makes perfect sense. It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families."

Finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs. Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

H-4 EAD RULE - WHO CAN APPLY

This rule is only applicable to dependent spouses. Dependent children are not eligible to apply for employment authorization under this new rule. The H-4 Employment Authorization Document (EAD) provides unrestricted employment authorization and can be used to work full time or part time for any employer in any field or position.

Not all H-4 dependent spouses will be eligible to apply for EAD. In order for an H-4 dependent to apply, the principal H1B worker must either (1) be the beneficiary of an approved I-140, or (2) have extended H1B status beyond six years based on the American Competitiveness in the Twenty-First Century Act (AC21).

  • Eligibility Based on I-140 Approval: H1B spouse be the beneficiary of an approved immigrant petition (I-140 form). The I-140 petition approved for the H1B spouse can be in any employment-based category including Employment-Based First preference (EB1), Employment-Based Second preference (EB2), and Employment-Based Third preference (EB3) cases. Please note - the I-140 does not have to be with the current H-1B employer. It can be through former employers or even future employer for whom H-1B holder never worked for.
  • Eligibility Based on H1B Spouse's Extension Beyond Six Years under AC-21: Under this category, H-4 spouse can apply for EAD, if the principal spouse has obtained an H1B extension beyond the six-year limit pursuant under provisions of AC21. Please refer to H-1B Extension beyond 6 years that allows an H1B nonimmigrant to extend status b eyond the standard six-year.

APPLICATION PROCESS

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States. This rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before May 26, 2015, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

Required Supporting Documentation

  1. Maintenance of Status: Application will have to be accompanied by proof that the applicant holds H-4 status and H1B spouse has maintained valid status. Generally H-1B holder's latest 3 month paystubs along with approval notice or I-94 could satisfy the maintenance of status requirement. H-4 EAD Rule,
  2. Falls within one of the two qualifying categories:
  • Approved I-140: If eligibility is based on the H1B spouse being the beneficiary of an approved I-140, a copy of the I-140 approval notice should be sufficient. If copy of I-140 is not available, USCIS may consider receipt number for the approved I-140 along with printout of approval from USCIS status check website.
  • Extension beyond 6 years (Under AC-21): Please read H-1B Extension beyond 6 years to understand who can extend beyond 6 years. If H-4 EAD eligibility is based on this ground, then the Applicant just have to establish that the H1B spouse has been granted an extension of status beyond the six-year limit. Evidence may include - prior H-1B approval Notices showing 6 year period, H-1B approval notices beyond 6 year period, and underlying AC-21 paperwork i.e. Approved I-140 or PERM and/or PERM filed and pending for more than 365 days.

Note: Even if PERM was denied, but an Appeal or Motion to Reopen has been filed and pending, it could qualify H-1B Applicant for post 6 year extension if it meets 365 day rule.

Note: If the I-140 was approved but was later withdrawn by the employer, the H-4 spouse may still qualify if the H1B worker has been approved for an extension of status beyond six years under the applicable AC21 provisions. Read H-1B Extended Beyond 6 Years, but underlying I-140 Revoked.The standard timeframe for adjudicating these cases is expected to be approximately 90 days, however it could take little longer depending upon USCIS Processing Time. Premium processing is not available for EAD applications. H-4 EAD can be approved for maximum of 3 years and/or matching the time of the H-4 approval, whichever shorter.

CONCLUSION
DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

H-4 EAD Rule, (c) Jay Terkiana, Immigration Attorney

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