H-4 Spouses of Certain H-1B Workers May Apply for Work Authorization Beginning on May 26, 2015

On February 24, 2015, U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced that, effective May 26, 2015, the Department of Homeland Security (DHS) will extend employment authorization to H-4 dependent spouses of certain H-1B workers who are seeking employment-based lawful permanent resident status in the United States.

Individuals in H-4 status are eligible if their spouses are H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).  AC21 permits certain H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

Under the final rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD).  USCIS will begin accepting applications on May 26, 2015.  Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

Providing employment authorization document eligibility to H-4 spouses of certain H-1B workers was an important element of the immigration executive actions President Obama announced in November 2014. DHS expects this change to reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

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