As promised since President Obama’s Executive Action of November 20, 2014, USCIS is amending its rules to allow work authorization for H-4 spouses in certain instances effective May 26, 2015.
H-4 spouses (spouse dependents of H-1B workers) have not been allowed work authorization, as have L-2 and E spouses. Because of long waiting lines for permanent residence for most applicants, spouses of those working in H-1B and in process for “green cards” have put careers on hold, often becoming isolated in a work-focused culture. The extreme shortage of H-1B visas has kept many of these qualified workers from contributing to the economy when their H-1B “lottery” applications are not chosen for processing. For nationals of India and China in particular, this situation usually persists for many years because of the high demand of immigrant visas by people from those countries.
The new rule would allow H-4 spouses to apply for an employment authorization document (“EAD”) upon either
(1) Approval of an I-140 for the principal applicant in H-1B status OR
(2) Extension of the principal applicant’s H-1B status on the basis of qualifying 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”).
Translation: If the H-1B worker has made significant steps toward obtaining the green card, the H-4 spouse can apply to work. The inclusion of the AC21 provision allows the spouse of someone that has not yet achieved an approved I-140, but has been in H-1B status for close to six years and entered into the permanent residence process in time to extend status beyond six years to work also.
To obtain work authorization, the spouse must file a form I-765 and pay the filing fee (currently $380). The application must be approved before work commences. The form I-765 must be filed 120 days before EAD expiration and be approved to continue work.
The I-765 application may be filed concurrently with the I-539 to extend the spouse’s H-4 status. However, the 90-day period for approval of the EAD will not commence until the I-539 is approved.
Those following the news last week know that other parts of President Obama’s Executive Action program have been stopped by a lawsuit. The H-4 spouse work rule has not been the subject of any such action as yet, but it does not go into effect until May 26, 2015. Applications should not be submitted until this date.
Note also that USCIS expect about 176,000 EAD applicants the first year and about 55,000 each year thereafter. The agency is struggling with processing EADs within the required 90 days with the current demand. The expected increase in demand could further strain resources. It is critical that EAD applications of any type are sent 120 days in advance of expiration (the earliest filing allowed).