Basic Eligibility Requirement for H-4 EAD

In May 2015, a regulation was implemented to finally allow at least some H-4 dependent spouses to obtain work authorization. Given that the program has been in place for nearly a decade, seasoned H1B workers and H-4 dependents are typically aware of the requirements to qualify for an employment authorization document (EAD) as an H-4 dependent spouse. However, for foreign nationals who are not familiar with the H-4 EAD rule, this article serves to provide a basic overview of the requirements to qualify for this important benefit.

Two Categories of H-4 Spouses Eligible for EADs

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).

Eligibility Based on I-140 Approval

The first category of H-4s who are 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. 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 H-4 EAD 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, Limitations on H1B Extensions Beyond the Standard Six-Year Limit (15.Aug.2022).

Documentary Requirements to File the H-4 EAD Application

To obtain permission to work, an H-4 spouse is required to file an application for employment authorization (form I-765), along with the proper filing fee. This must 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.

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.

Additional Details About H-4 EAD

The H-4 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 rule.

Conclusion

The H-4 EAD program is far from perfect. But since it was implemented nearly a decade ago, the program has transformed the lives of countless H-4 dependent spouses, the majority of whom are Indian women who waited years for the opportunity to put their education and skills to use. These taxpayers and job creators are helping to make the U.S. economy, while working toward their own American dream.

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