Certain
H-4 dependent spouses may now apply for employment authorization under
the H-4 rule. On February 24, 2015, USCIS announced that effective
today, May 26, 2015, the Department of Homeland Security (DHS) would
begin accepting applications for employment authorization from certain
H-4 dependent spouses of H-1B nonimmigrants who are seeking
employment-based lawful permanent resident status.
Starting today, you may apply for employment authorization under this rule if your H-1B nonimmigrant spouse:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has
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 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.
Beginning May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization,
as long as the H-1B nonimmigrant has already started the process of
seeking employment-based lawful permanent resident (LPR) status.
Specifically, H-4 dependent spouses may apply for employment
authorization if the H-1B nonimmigrant:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has
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 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.
The Employment Authorization for Certain H-4 Dependent Spouses final rule
(H-4 rule), effective on May 26, 2015, seeks to support the goals of
attracting and retaining highly skilled foreign workers and minimizing
the disruption to U.S. businesses resulting from H-1B nonimmigrants who
choose not to remain in the United States and pursue LPR status.
Although USCIS published the H-4 notice of proposed rulemaking in May 2014, finalizing it was 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.
U.S. businesses use the H-1B program
to employ foreign workers in specialty occupations that require a
bachelor’s or higher degree in a specific specialty that is directly
related to the H-1B position. In addition to specialty occupation
workers, the H-1B classification applies to individuals performing
services related to a Department of Defense cooperative research and
development project or coproduction project, and to individuals
performing services of distinguished merit and ability in the field of
fashion modeling.
Visit our H-1B Visa Web page for more information on eligibility for the H-1B program.
You are eligible if you are the H-4 dependent spouse of an H-1B nonimmigrant if your H-1B nonimmigrant spouse:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has
been granted H-1B status under sections 106(a) and (b) of the AC21. The
AC21 permits H-1B nonimmigrants seeking employment-based lawful
permanent residence to work and remain in the United States beyond the
six-year limit.
You must file Form I-765 and receive an Employment Authorization Document (EAD/Form I-766)
from USCIS before you may begin working. Carefully follow these steps
to prevent your application from being rejected and returned to you:
- Do not file before May 26, 2015.
- Complete Form I-765 using the Instructions for Form I-765. USCIS will reject any application that is not accompanied by the proper filing fees or signature. The fee is $380.
- Submit
supporting evidence (see chart below). Submitting sufficient supporting
evidence will minimize the likelihood that USCIS will need to send you a
request for more evidence.
Evidence of… | Can be shown by submitting… |
|---|
Your H-4 status | - A copy of your most recent Form I-797, Notice of Action, for Form I-539, Application to Extend/Change Nonimmigrant Status; or
- A copy of Form I-94, Arrival/Departure Record, showing your admission or extension of stay as an H-4 nonimmigrant.
|
A government-issued identification document with photo | - A copy of your last EAD (if any);
- A copy of the biometric page of your passport;
- A birth certificate with photo ID;
- A visa issued by a foreign consulate; or
- A national identity document with photo.
|
Your relationship to the H-1B nonimmigrant | - A copy of your marriage certificate.
|
Your basis for eligibility | - Evidence that the H-1B nonimmigrant is the principal beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140).
- You may show this by submitting a copy of the H-1B nonimmigrant’s Form I-797 approval notice for Form I-140;
OR - Evidence that the H-1B nonimmigrant has received an extension of stay under AC21 sections 106(a) and (b).
- You may show this by submitting:
1.
A copy of the H-1B nonimmigrant’s passports, prior Forms I-94
(Arrival/Departure Record), and current and prior Forms I-797 for Form
I-129, Petition for a Nonimmigrant Worker; and 2. Evidence to establish one of the following bases for the H-1B nonimmigrant’s extension of stay: - Based on Filing of a Permanent Labor Certification Application.
Submit evidence that the H-1B nonimmigrant is the beneficiary of a
Permanent Labor Certification Application that was filed at least 365
days prior to the expiration of the six-year limitation of stay. You may
show this by submitting 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 H-1B nonimmigrant’s Permanent Labor Certification
Application. If DOL certified the Permanent Labor Certification, also
submit a copy of Form I-797 Notice of Receipt for Form I-140
establishing that the Form I-140 was filed within 180 days of DOL
certifying the Permanent Labor Certification;
OR - Based on a Pending Form I-140.
If the preference category sought for the H-1B nonimmigrant does not
require a Permanent Labor Certification Application with DOL, submit
evidence that the H-1B nonimmigrant’s Form I-140 was filed at least 365
days prior to the expiration of the six-year limitation of stay and
remains pending. You may show this by submitting a copy of the Form
I-797 Notice of Receipt for Form I-140.
Examples of Secondary Evidence.
If you do not have any evidence relating to the H-1B nonimmigrant as
described in “a†or “b†above, you may ask USCIS to consider secondary
evidence in support of your application for work authorization as an H-4
spouse. For example, such information may include the receipt number of
the H-1B nonimmigrant's most current Form I-129 extension of stay
request or the receipt number of the H-1B nonimmigrant's approved Form
I-140 petition. Failure to provide necessary information about the H-1B
nonimmigrant may result in a delay in the adjudication or denial of your
application for employment authorization. |
Photos for card production | - Two identical two-by-two-inch passport-style color photographs of yourself
|
If
you submit any documents containing a foreign language to USCIS, you
must also submit a full English language translation that the translator
has certified as complete and accurate. The translator must also
certify that he or she is competent to translate from the foreign
language into English.
When filing Form I-765, please mail it to the proper location based on the chart below.
If you are submitting your Form I-765… | Then please file your application at… |
|---|
As a standalone application because you are currently in H-4 status and do not need to extend your status | The Lockbox address found on our Direct Filing Addresses for Form I-765 Web page. |
Together with Form I-539 seeking a change to or extension of H-4 status | The Lockbox address found on our Direct Filing Addresses for Form I-765 Web page. |
Together
with Form I-129 seeking H-1B status for your spouse and Form I-539,
seeking a change to or extension of H-4 status for yourself | The Service Center with jurisdiction over Form I-129. Please see our Direct Filing Addresses for Form I-129 Web page for more information. |
For
your convenience, you may file Form I-765 with Form I-539, Application
to Extend/Change Nonimmigrant Status, or with both Form I-539 and the
H-1B principal nonimmigrant’s Form I-129, Petition for a Nonimmigrant
Worker. However, USCIS will not process your Form I-765 (except filing
fees) until after USCIS has adjudicated your Form I-539.
The
90-day period for adjudicating Form I-765 filed together with Form
I-539 does not begin until USCIS has determined whether you are eligible
for the underlying H-4 nonimmigrant status, whether your spouse is
eligible for the underlying H-1B nonimmigrant status, or both.
Do NOT e-file Form I-765. You must mail your form together with evidence and fees to the appropriate filing location as outlined above.
You
will not be eligible to work until USCIS approves your Form I-765
application. Once your employment authorization is approved, the
expiration date on your EAD will likely be the same date as the
expiration date on your most recent Form I-94 indicating your H-4
nonimmigrant status. You are only authorized to work through the
expiration date on your EAD. If you still will be eligible for work
authorization after that date, you should file for a renewal EAD by
submitting another Form I-765. You cannot file for a renewal EAD more
than 120 days before your original EAD expires.
Some
unauthorized practitioners may try to take advantage of you by claiming
they can file an EAD. These same individuals may ask that you pay them
to file such forms. To learn the facts about how to protect yourself and
your family from scams, please visit www.uscis.gov/avoidscams.
