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UNITED STATES – Employment Authorisation Extended to H-4 Spouses of Certain H-1B Visa Holders

Effective 26 May 2015, The Department of Homeland Security (DHS) will finally extend employment eligibility for certain H-4 dependent spouses of H-1B nonimmigrants who have applied for lawful permanent resident (LPR) status.

Who Benefits?

H-4 visa holders eligible for employment authorization are spouses of H-1B visa holders who have

  • an approved I-140 Petition for Alien Worker; or
  • an H-1B visa extended beyond six years, as they are in the process of seeking lawful permanent residence.

It is expected that the persons who will benefit most from these provisions are spouses of J-1 physicians who are fulfilling their J-1 waiver commitment of three years, persons born in India and China in the EB2 (employment based second preference) category and all persons in the EB3 (employment based third preference) category born in all countries.

Eligible dependent spouses without H4 status may concurrently request a change of status to H-4 and employment authorization.

How Do Eligible Spouses Apply?

To obtain an Employment Authorization Document (EAD), eligible H-4 spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee.

Timing

  • U.S. Citizenship and Immigration Services (USCIS) will begin accepting applications on 26 May 2015.
  • It can take up to 90 days to receive the EAD after the application has been submitted.
  • Once the EAD is received by the H-4 spouse, they may begin working in the United States.
  • At the discretion of USCIS, the H-4 spouse may be issued an EAD valid for up to the validity of the H-4 status, and in any case not exceeding the validity of the H1-B holder’s approved period of stay.
  • If the EAD expires before the H-4 status expires, the EAD renewal process should be started as soon as possible (up to 120 days) before expiry.

Action Items

  • Eligible spouses who are interested in obtaining employment authorization should begin to prepare their application and supporting documents so as to be ready for filing on 26 May 2015.

This news alert was prepared using information provided by Maggio and Kattar.

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2017 Peregrine Immigration Management Ltd.