USCIS Authorizes Employment Eligibility for Certain H-4 Dependents

06 April 2016

As of May 26, 2015, USCIS has extended eligibility for employment authorization to certain H-4 dependent spouses of H-1B non-immigrants, who are seeking employment-based, lawful permanent resident (LPR) status in the United States. This new regulation is part of the executive actions on immigration that President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of the initiatives to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.  The Department of Homeland Security has amended its regulations to allow these H-4 spouses to accept employment in the United States.

Eligible individuals include those H-4 dependent spouses of H-1B nonimmigrants who:

  1. Are the principal beneficiaries of an approved, I-140, Immigrant Petition for Alien Worker; OR
  2. Have been granted H-1B status under AC-21, which permits H-1B nonimmigrants who are seeking LPR status to work and remain in the United States beyond the 6-year limit on their H-1B status.

If you are an H-4 dependent whose spouse in H-1B status falls in one of the above categories, you may be eligible to work legally in the United States. You must file the Form I-765 and receive an Employment Authorization Document (EAD/Form I-766) from USCIS before you may begin working.

 

FAQs:

  1. As an H-4 nonimmigrant, would my employment authorization be limited to just my H-1B spouse’s time under AC21? For example, if my H-1B spouse’s petition is approved for the remaining time left in the 6-year period of admission plusthe one year under AC21 §§ 106(a) and (b), and my H-4 status is granted the same period of time, how long will my employment authorization be valid for?

Your employment authorization expiration date generally will match your H-4 nonimmigrant status expiration date. USCIS may grant employment authorization for the maximum time allowed even if the AC21 §§ 106(a) and (b) portion of your H-1B spouse’s extension is only for part of the full validity period. Under this scenario, your H-1B spouse’s extension has been granted under AC21 §§ 106(a) and (b), so you would be eligible for employment authorization for as long as your H-4 status is valid

  1. Is this a one-time opportunity?

No, this is not a one-time opportunity. If you are a H-4 nonimmigrant who obtains employment authorization under 8 CFR 274a.12(c)(26), you may file to renew your employment authorization and receive a new EAD as long as you remain eligible for employment authorization as described in 8 CFR 214.2(h)(9)(iv).

  1. Do I need to be in the United States to apply for employment authorization based on my H-4 status?

Yes, you must be in the United States to apply for employment authorization. You must be in H-4 status to be eligible for employment authorization, and an individual outside of the United States cannot be in H-4 status.

  1. Am I eligible for employment authorization if USCIS revoked my H-1B spouse’s approved Form I-140 petition?

In order to qualify for employment authorization as an H-4 nonimmigrant, your H-1B spouse must have been granted H-1B status under sections 106(a) and (b) of AC21 or be the beneficiary of an approved Form I-140. If USCIS revokes the Form I-140 petition, your H-1B spouse is no longer the beneficiary of an approved Form I-140. Therefore, you would not qualify for employment authorization based on that eligibility criterion. You may still qualify for employment authorization if your H-1B spouse has received an extension of stay under sections 106(a) or (b) of AC21.

  1. My H-1B spouse’s approved Form I-140 was filed by a previous employer. Am I eligible for employment authorization?

For you to qualify for employment authorization based on your H-4 status, your H-1B spouse must have been granted H-1B status under sections 106(a) and (b) of AC21 or be the beneficiary of an approved Form I-140. USCIS does not require that the approved Form I-140 be filed by your spouse’s current employer or by the same employer who filed your H-1B spouse’sForm I-129, Petition for a Nonimmigrant Worker.

  1. What happens to my employment authorization if USCIS revokes my H-1B spouse’s Form I-140?

We have the discretion to revoke your employment authorization if your H-1B spouse no longer has an approved Form I-140 or is no longer eligible for H-1B status under sections 106(a) and (b) of AC21. Both you and your H-1B spouse must be maintaining your nonimmigrant status for you to be eligible for employment authorization under 8 CFR 274a.12(c)(26).

  1. If I am granted H-4 employment authorization, can I work anywhere (including starting my own business)?

Yes. If you are granted employment authorization based on your H-4 status, your employment authorization is unrestricted. This means that your employment authorization is not limited to a specific employer. It also does not prohibit self-employment or starting a business.

  1. Can I employ other people?

As noted above, employment authorization based on H-4 status under 8 CFR 274a.12(c)(26) is unrestricted. Such employment authorization does not prohibit self-employment, including situations where the H-4 nonimmigrant hires individuals as employees of their business.

  1. Can I file the following applications/petitions concurrently?

a. An H-1B extension of stay petition, an H-4 extension of stay application, and an application for employment authorization?

Yes. You may file your Form I-765, Application for Employment Authorization together with your Form I-539, Application to Extend/Change Nonimmigrant Status and the Form I-129, Petition for Nonimmigrant Worker filed on behalf of your H-1B spouse. For extensions of nonimmigrant status, the Form I-129 for your H-1B spouse can be filed no more than six months before the date that the employer needs your spouse to work.

b. A new H-1B petition, a new H-4 change of status application, and an application for employment authorization?

Yes, but this scenario is possible only if your H-1B spouse has an approved Form I-140 or is requesting an extension of stay under sections 106(a) and (b) of AC21. Your spouse’s employer can file Form I-129 for your H-1B spouse no more than six months before the date the employer needs your spouse to work.

Please note that under this scenario, we cannot adjudicate your Form I-765 until we make a determination about both your H-1B spouse’s eligibility for H-1B status under sections 106(a) and (b) of AC21 and your eligibility for H-4 nonimmigrant status.

In either of the above scenarios, USCIS will not begin the 90-day interim EAD clock until we make a decision on your spouse’s H-1B status and your H-4 status.

c. A Form I-485, Application to Register Permanent Residence or Adjust Status, and an application for employment authorization under category (c)(26) at the Lockbox address for Form I-765 category (c)(26)?

No. You cannot file a Form I-765 for category (c)(26) together with a Form I-485, Application to Register Permanent Residence of Adjust Status at the Lockbox address for Form I-765 category (c)(26). If filing a Form I-485, you must follow the Form I-485 filing instructions and submit your Form I-485 to the correct filing address for that form. If you file a Form I-765 together with a Form I-485 at the filing address for Form I-765 category (c)(26), USCIS will reject your Form I-485 and any corresponding fees. Additionally, if you included the fees for both forms on the same check or money order, USCIS may also reject your Form I-765 for category (c)(26). Filing a Form I-765 for category (c)(26) at locations noted for a Form I-485 locations may result in processing delays. If you are filing Form I-765 together with Form I-485 at the I-485 filing locations,you should specify your work eligibility category as “(c)(9)” and pay only the Form I-485 filing fee (and not the Form I-765 filing fee) to avoid processing delays.

10. Where should I File Form I-765 for category (c)(26)?

For information on where to file a Form I-765 for category (c)(26), please visit the Employment Authorization for Certain H-4 Dependent Spouses Web page. Please note, filing Form I-765 for category (c)(26) at locations other than those noted may result in processing delays or rejection.

11. Will the Form I-765 be a paper-based application, or will it be an electronic application?

If you are applying for employment authorization based on your H-4 nonimmigrant status, you must file a paper Form I-765 application. We will not accept electronic Form I-765 applications.

12. There are multiple versions of Form I-765. What version of Form I-765 should I use?

While USCIS is currently accepting the older versions of Form I-765 with edition dates of 02/13/15, 05/27/08 or later, we encourage H-4 applicants to use the newer version with an edition date of 11/04/15 in order to prevent delays or the need for USCIS to issue you a request for evidence.

13. What evidence should I, as an H-4 nonimmigrant, submit to demonstrate my eligibility for employment authorization?

When applying for employment authorization based on your H-4 nonimmigrant status, submit the following with your application to demonstrate eligibility:

  • Evidence of your H-4 nonimmigrant status;
  • Evidence of your qualifying spousal relationship with the H-1B principal nonimmigrant (such as a copy of your marriage certificate);
  • Evidence of your spouse’s H-1B nonimmigrant status, such as:
    • A copy of Form I-797, Notice of Approval, for Form I-129 filed on your H-1B spouse’s behalf (if already approved and not being filed with your application for employment authorization);
    • A copy of your H-1B spouse’s Form I-94, Arrival-Departure Record;
    • The receipt number of the approved Form I-129 filed on behalf of your H-1B spouse (if already approved and not being filed with your application for employment authorization); and/or
    • A legible copy of the personal data pages of your H-1B spouse’s passport, the visas on which he or she last entered the United States, and the latest U.S. admission stamps in his or her passport.
    • If you are applying for employment authorization based on your spouse’s grant of H-1B status under AC21 §§ 106(a) and (b), include the following evidence:
  • Evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his or her six-year limitation of stay as an H-1B nonimmigrant. Such evidence may include, but is not limited to:
    • A copy of a print out from the Department of Labor’s (DOL’s) website or other correspondence from DOL showing the status of the Permanent Labor Certification Application filed on your H-1B spouse’s behalf; or
    • If DOL certified the Permanent Labor Certification, a copy of Form I-797, Notice of Receipt, for Form I-140 establishing that Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification Application; OR
  • Evidence that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his or her six-year limitation of stay as an H-1B, and the Form I-140 remains pending. Such evidence may include, but is not limited to:
  • A copy of your H-1B spouse’s Form I-797 Receipt Notice for Form I-140; or
  • The receipt number of your H-1B spouse’s the pending Form I-140 filed on behalf of the H-1B spouse.
  • If you are applying for employment authorization based on your spouse being a beneficiary of an approved Form I-140, include evidence that the Form I-140 filed on your H-1B spouse’s behalf has been approved. Such evidence may include, but is not limited to:
    • A copy of the Form I-797 Approval Notice for Form I-140; or
    • A copy of the Form I-797 Receipt Notice for Form I-140 along with an explanation about why the Form I-797 Approval Notice is unavailable.Such attestation can include the receipt number of the most current Form I-129 extension of stay filed on your H-1B spouse’s behalf or the receipt number of the approved Form I-140 petition filed on your H-1B spouse’s behalf, and the petitioner’s/beneficiary’s names in the underlying Form I-129 or I-140. If you cannot obtain such secondary evidence, explain your inability to do so and submit two or more sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances.
    • If you cannot submit the evidence listed on the Basis for Work Authorization section, you must demonstrate your inability to submit such evidence and instead submit secondary evidence, such as an attestation that lists information about the underlying Form I-129 or Form I-140 petition.

14. Will USCIS require me to submit original documents with my application for employment authorization?

As noted in the instructions for Form I-765, Application for Employment Authorization, you may submit a legible photocopy of an original document with your application, unless we later specifically request the original document in a request for evidence. If you submit original documents when not required, those documents may remain a part of the record and will not be automatically returned.

15. Will premium processing be available for Form I-765, Application for Employment Authorization?

No. Premium processing is not available for Form I-765 applications filed by H-4 dependent spouses under 8 CFR 274a.12(c)(26).

16. What if my Form I-539 for H-4 status is still pending on May 26, 2015? Can I file Form I-765 immediately? Will USCIS match my Form I-765, Application for Employment Authorization to my pending Form I-539?

If you have filed a Form I-539 and it is still pending on May 26, 2015, we encourage you to wait until your Form I-539 has been adjudicated before filing a Form I-765. This will prevent delays in the adjudication of your Form I-765. Additionally, because we anticipate a high volume of filings, we cannot guarantee that we will be able to match your Form I-765 with your Form I-539.

17. Will USCIS cut off Forms I-765 after receiving the anticipated number of applications stated in the rule?

No. There is no cap on Forms I-765 filed based on H-4 dependent spouse eligibility under 8 CFR 274a.12(c)(26).

18. Does USCIS expect any changes to the Form I-140 immigrant petition process based on this regulation change?

No. We do not anticipate any changes in the way officers adjudicate Form I-140 immigrant petitions.

19. I am an F-1 nonimmigrant who possesses Optional Practical Training (OPT) employment authorization. Would there be continuous employment if I file a petition requesting H-4 nonimmigrant status concurrently with an EAD?

As an F-1 nonimmigrant who has employment authorization under OPT, you are allowed to work only as long as the OPT authorization remains valid. Filing an application to change status from F-1 to H-4 nonimmigrant status and/or an application for employment authorization based on H-4 status does not extend your employment authorization under OPT or any previously granted employment authorization. If you file a Form I-539 requesting to change your nonimmigrant status to H-4 and you include a Form I-765, we will adjudicate your Form I-765 only after we adjudicate your Form I-539 and grant you H-4 status.

20. Will USCIS backdate the beginning validity date on the EAD to the start of my H-4 status if the Form I-539 is adjudicated before Form I-765?

No. We will not backdate the validity date of your EAD to the time your H-4 status was granted. Your EAD will be valid beginning on the date that USCIS adjudicates your Form I-765 or the date you acquire qualifying H-4 status, whichever is later. Additionally, your EAD will expire when your H-4 nonimmigrant status expires.

21. Can I travel while my Form I-765 is pending?

You may travel if you are in valid H-4 status and meet all the admission requirements, including having a valid H-4 nonimmigrant visa. However, traveling outside of the United States could cause delays in your case. While you are outside of the United States, we may need additional information to make a decision on your Form I-765 or we may issue a Notice of Intent to Deny (NOID) with an opportunity to respond. If you do not respond on time to a Request for Evidence (RFE) or to the NOID, we may deny your case as abandoned. Additionally, travel outside of the United States may also cause possible delays if we need to reschedule your appointment at an Application Support Center.

Finally, please note that if you file Form I-765 concurrently with Form I-539 requesting a change to H-4 status from a different nonimmigrant classification, we will deny your Form I-539 as abandoned if you travel abroad while your Form I-539 is pending. In this case, we would also deny your Form I-765.

If you choose to depart from the United States before your pending change of status application is approved, we will deny your Form I-539 and Form I-765, even if you are re-admitted as an H-4 nonimmigrant.  In such cases, after being admitted into the United States as an H-4 nonimmigrant, you will need to a file a new Form I-765.

22. How long will it take USCIS to adjudicate my Form I-765?

The timeline will vary from case-to-case. Currently, the processing time for Form I-765 is 90 days (3 months). Please note that if you file a Form I-765 based on your H-4 nonimmigrant status under 8 CFR 274a.12(c)(26) concurrently with a Form I-129 and Form I-539, the processing timeline will not begin until we have made a decision on your spouse’s eligibility for H-1B status and/or your eligibility for H-4 status. Processing may also be delayed if the evidence included with these benefit requests does not establish eligibility and we need to issue an RFE or NOID.

23. Can I use my EAD to enter and exit the country?

No. An EAD issued to an H-4 dependent spouse under 8 CFR 274a.12(c)(26) is not an entry document. If you have H-4 nonimmigrant status and depart the United States, you must use your valid passport and H-4 nonimmigrant visa (unless you are visa exempt) or other travel document to return to the United States.

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