Overview of the New H-4 EAD Rule

As reported in a 24.Feb.2015 NewsFlash on MurthyDotCom, the U.S. Department of Homeland Security (DHS) has finalized a regulatory change that will allow certain H-4 dependent spouses to apply for employment authorization documents (EADs). The new regulation will go into effect on May 26, 2015. The release of the final rule provides some clarity regarding a number of lingering questions, such as the validity period of the EADs that will be issued to H-4 spouses.

Two Categories of H-4 Spouses Eligible for EADs

It is important to understand that not all H-4 dependents will be eligible to apply for EADs. Rather, for an H-4 spouse to qualify, 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). The EAD provides unrestricted employment authorization. It can be used to work full time or part time for any employer in any field or position. Children who hold H-4 status, even those who are old enough to work, are not eligible to apply for employment authorization under the new rule.

Eligibility Based on I-140 Approval

The first category of H-4s who will be eligible to request EADs is fairly straightforward. All that is required is that the H1B spouse be the beneficiary of an approved immigrant petition (I-140 form). There are no other requirements or restrictions. The I-140 petition approved for the H1B spouse can be in any employment-based category for which the I-140 is utilized. This includes employment-based, first preference (EB1), second preference (EB2), and third preference (EB3) cases. With an approved I-140, it does not matter how much time the H1B worker or H-4 spouse have spent in the United States. It is also not necessary for the H1B spouse to work for the employer that filed the I-140 petition. The I-140 does not have to have been approved for any minimum length of time.

Eligibility Based on H1B Spouse’s Extension Beyond Six Years

Under the second category of EAD eligibility, the H-4 spouse is only eligible to apply for an EAD under the new rule if the principal spouse has obtained an H1B extension beyond the six-year limit pursuant to specific provisions of AC21. The provisions in question are contained in sections 106(a) and (b) of AC21. These sections of the law allow an H1B nonimmigrant to extend status beyond the six-year standard limit in one-year increments.

Eligibility for these one-year extensions is based on the H1B spouse being the beneficiary of either a PERM labor certification (PERM LC) application or an I-140 immigrant petition that was filed at least 365 days prior to the end of the sixth year of H1B status. It is not necessary for the PERM LC or the I-140 to have been approved for the H-4 spouse to be eligible under this rule. However, it is necessary for either the PERM LC or I-140 to still be “alive,” meaning not having received a final denial or revocation decision. A more detailed analysis of how the H1B spouse can obtain a one-year extension pursuant to AC21 is discussed in depth in the MurthyDotCom NewsBrief, H1B Status: 6-Year Limit, Portability, and More.

Documentary Requirements to File the H-4 EAD Application

In order to obtain permission to work, an H-4 spouse will be required to file an application for employment authorization (I-765 form), along with the proper filing fee. This will have to be accompanied by proof that the applicant holds H-4 status and that the H1B spouse has maintained valid status and falls within one of the two qualifying categories, as explained above.

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 as primary evidence of fulfilling this requirement. If this is not available, the U.S. Citizenship and Immigration Services (USCIS) may consider secondary evidence, such as the receipt number for the approved I-140 and/or evidence that the H1B worker has been granted an extension of status beyond the six-year limit. Note that if the I-140 was approved, but then withdrawn by the employer, the H-4 spouse may potentially still qualify if the H1B worker has been approved for an extension of status beyond six years under the applicable AC21 provisions.

If the H-4 spouse is eligible based on the principal spouse’s extension of H1B status under AC21, the primary documentary evidence of eligibility is somewhat more flexible. Evidence such as a copy of the H1B spouse’s passport, prior I-94 cards, prior H1B approval notices, and/or copies of pay stubs that would tend to establish that the H1B spouse has been granted an extension of status beyond six years may be used as primary evidence. The proof of the basis for the extension (i.e. pending PERM and/or pending I-140) is also necessary.

Timing for Filing and Validity Period of H-4 EADs

The H-4 EAD rule will go into effect on May 26, 2015. Applications filed prior to this date will not be accepted. Once the USCIS begins to accept these applications, the standard timeframe for adjudicating these cases is expected to be approximately 90 days. However, as explained previously the processing time will likely be longer for cases in which the applicant is requesting an extension or change of status concurrently with the EAD application. Premium processing is not available for EAD applications. EADs that are approved will be issued for “…a validity period that matches the H-4 spouse’s remaining authorized period of admission, which [generally] may be as long as three years…”

USCIS Teleconference on Feb 26th to Discuss H-4 EAD Rule

On Thursday, February 26, 2015, from 1:00 – 2:00 p.m. (Eastern Time), the USCIS will host a teleconference to discuss the new H-4 EAD rule. The teleconference is free and open to the general public. More information about participating in the teleconference is available on the USCIS WebSite.

Conclusion

Sheela Murthy and the attorneys at the Murthy Law Firm are thrilled that the H-4 EAD rule is, at long last, being implemented. While the rule does not help all H-4 dependents, it is a huge step in the right direction. To remain informed about any news regarding the H-4 EAD rule, as well as other updates and changes in immigration law, please subscribe to the free MurthyBulletin.

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