United States: New DHS Rule Extends Eligibility For Work Authorization To H-4 Dependent Spouses Of Certain H-1B Workers Starting May 26, 2015

Executive Summary:

In a historic move, effective May 26, 2015, the Department of Homeland Security ("DHS") will allow, for the first time, H-4 spouses of H-1B workers who are pursuing permanent residence ("green cards") to apply for work authorization. DHS recognizes that the inability of H-4 spouses to work, through what is often a very lengthy green card process for the H-1B worker, may create financial and personal stressors for a household which can make the prospect of living in the U.S. long term unattainable. Given that such financial constraints can cause an H-1B worker to abandon his or her green card process and return overseas, resulting in the loss of talent and disruption to US businesses, DHS hopes that the change will encourage H-1B nonimmigrants to remain in the U.S. and see the process through to the end. In this way, DHS supports the retention of highly skilled H-1B workers and ensures that this talent remains in the U.S. to benefit our economy as opposed to the economy of a competitor nation. DHS estimates the amendment will result in as many as 179,600 H-4 dependent spouses being eligible to apply for employment authorization during the first year of implementation. As many as 55,000 H-4 dependent spouses could be eligible to apply for employment authorization each year thereafter.

Which H-4 Spouses are Eligible for Work Authorization?

An H-4 spouse is eligible for work authorization if the H-1B worker either:

(1) Has an approved Immigrant Petition for Alien Worker (Form I-140); or

(2) Has been granted H-1B status beyond the six-year maximum time limit based on the fact that his/her green card process has progressed according to the American Competitiveness in the Twenty-first Century Act of 2000 (referred to as "AC21") sections 106(a) and (b). These AC21 sections lift the six-year H-1B limit for H-1B workers for whom more than 365 days has elapsed since an employer filed a Labor Certification Application or Immigration Petition (Form I-140) on his or her behalf.

What is the Filing Procedure?

On May 26, 2015, USCIS will begin accepting applications for employment authorization from eligible H-4 spouses (DHS Form I-765 Application for Employment Authorization).  Applications must be accompanied by evidence supporting eligibility and the $380 filing fee.  The new regulation requires USCIS to process H-4 spousal work authorization applications within 90 days. The H-4 spouse may not begin to work until the Employment Authorization Document ("EAD") has been received.

The H-4 spouse may file the EAD application (Form I-765) either by itself or concurrently with an application to extend or change to H-4 status (Form I-539 to Extend/Change Nonimmigrant Status). In the case of a concurrent H-4/EAD filing, the 90-day EAD processing window will not begin until the H-4 application has been approved. Although EAD applications are not eligible for expedited "Premium Processing," the new rule permits H-4/EAD applications to be filed concurrently with the H-1B worker's extension petition, which is eligible for expedited processing. In this way, the 90-day EAD clock could begin in as soon as 15 days if the EAD application is concurrently filed with an expedited H-1B petition. The earliest point at which the H-1B/H-4/EAD concurrent filing may be submitted is six months prior to the H-1B worker's current status expiration date.

When can an eligible H-4 spouse file the EAD application (Form I-765)?

On or after May 26, 2015. Applications submitted prior to that date will be rejected.

How long will the H-4 EAD be valid?

The validity period of the EAD will match the period of the H-4 status, which could be as long as three years depending on the H-1B beneficiary's green card processing stage.

The Bottom Line

The Final Rule should be welcome news for both U.S. businesses employing H-1B visa holders as well as H-1B visa holders who are pursuing U.S permanent residence. Employers will benefit because the Rule encourages talent retention. H-1B workers who have committed to becoming U.S. permanent residents will benefit from the opportunity for additional household income during the lengthy waiting period for an available visa number. 

H-1B employer sponsors should anticipate questions regarding their willingness to pay the filing fees and attorney's fees associated with an H-4 spousal EAD application and whether they will pay for premium processing of H-1B extension petitions to facilitate speedier processing of the H-4 spouse's original work authorization application and future extensions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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