H-4 EAD for Certain Dependent Spouses Now in Effect

Effective May 26, 2015, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS), under its new final rule, began accepting applications for employment authorization for certain H-4 dependent spouses of H-1B employees who seek employment-based lawful permanent resident (LPR) status. The USCIS has accordingly amended its Instructions for I-765, Application for Employment Authorization, and corresponding I-765 application form (revision date February 13, 2015), to incorporate the new regulation.

Under prior regulations, H-4 spouses were not eligible for employment authorization. Now,  under the new rule, H-4 spouses are eligible for employment authorization documents (EADs) if the H-1B employee is the principal beneficiary of an approved Immigrant Petition for Alien Worker (I-140) or the H-1B employee received an extension beyond the six year H-1B maximum via a Permanent Labor Certification Application (PERM) filed at least 365 days prior to expiration of the 6 year limitation or if the H-1B’s preference category does not require a PERM, and he or she filed a currently pending I-140 at least 365 days prior to the 6 year expiration date.     

In a news alert on May 20, 2015, NewsAlert! H-4 EAD FAQ’s released, we announced the USCIS updated its webpage with eligibility requirements, filing guidance, and frequently asked questions (FAQs) with respect to its new H-4 employment authorization rule. Here, we will provide an overview of some of the more effectual aspects of USCIS’ FAQs/guidance as follows:

• Filing for an H-4 EAD is not a one time opportunity. One may file after May 26, 2015, and may file to renew as long as eligible;
• There is no cap on the number of I-765 (H-4 EAD) applications;
• 90 days is the expected processing time for H-4 EAD applications;
• Presently, H-4 EAD applications are only accepted in paper form (i.e., no electronic filing) and premium processing is not available;
• In order to apply, one must be currently in valid H-4 status. An individual outside the U.S. cannot be in H-4 status. Therefore, one must be physically present in the U.S. to apply for an H-4 EAD;
• If approved, the H-4 EAD expiration date will generally match the H-4 status expiration date;
• Initial H-1B and H-4 petitions/applications may be filed concurrently with an initial H-4 EAD application – however, the 90 day clock for the H-4 EAD application will not begin until a decision on the underlying H-1B and H-4 applications;
• H-1B and H-4 extension of stay applications (I-539 Application to Extend/Change Nonimmigrant Status) may be filed concurrently with an H-4 EAD application – however, if a previously filed I-539 is pending – USCIS recommends waiting until the pending I-539 is decided until filing an H-4 EAD application in the first instance;
• Both the H-4 EAD applicant spouse and the H-1B spouse must maintain status for H-4 EAD eligibility – therefore, absent extensions of stay, H-4 spouses are not initially eligible for an EAD if USCIS revoked the H-1B’s I-140 petition;
• It is not necessary for the H-1B spouse’s approved I-140 to have been filed by his or her current employer in order for the H-4 spouse to be eligible for employment authorization;
• USCIS retains discretion to revoke an H-4 EAD if the H-1B spouse subsequently loses an approved I-140 or is otherwise no longer eligible for H-1B status;
• The H-4 EAD authorized under the new rule is “unrestricted” and, as such – is not limited to a specific employer, allows self-employment and starting one’s own business, and the H-4 spouse and/or business may employ other people;
• Travel abroad is permitted for an H-4 EAD applicant who is in valid H-4 status – but the applicant remains responsible for timely providing USCIS additional evidence or responding to notices associated with the application while out of the country;
• If not in current valid H-4 status, such as when an H-4 EAD application and I-539 are filed concurrently requesting a change to H-4 status – travel abroad results in abandonment of the I-539 and therefore denial of the companion H-4 EAD application; and
• An H-4 EAD is not a travel document – if traveling abroad, individuals need separate travel documents such as a passport and H-4 visa to return to the United States.

The above is a synopsis of some of the operative USCIS FAQs with respect to the newly implemented H-4 EAD regulation. We condense and summarize them here as a service to our readers. It is not intended as legal advice. The USCIS’ interpretations as to how it administers the new H-4 EAD rule and attendant application process may also evolve over time. We at Sharma Law Offices, LLC, stand ready to assist you with any questions you may have regarding your particular set of circumstances.