Good News! Certain H-4 Spouses Can Apply for Employment Authorization

Beginning May 26, 2015, the U.S. Citizenship and Immigration Services (USCIS) will accept Form I-765, Employment Authorization applications from H-4 spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.

Eligible individuals include certain H-4 dependent spouses of 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”). The Act 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.(1)(2)

To be clear, this new rule will only impact approximately 179,600 H-4 spouses. It does not apply to all H-4 dependents.

This new rule is an important element of the President Obama’s executive action on immigration, which was announced in November 2014.

USCIS reminds those who are potentially eligible that this rule is not effective until May 26, 2015, and that no applications should be submitted before this date.

1 Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period, when:

  • A labor certification is unexpired at the time of filing of the Form I-129 H-1B extension petition; and
  • The labor certification was filed with DOL or the I-140 petition was filed with USCIS at least 365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1B status in the United States pursuant to 214(g)(4); and
  • The extension and I-129 petition are otherwise approvable.

2 USCIS will grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

  1. Deny the application for labor certification;
  2. If the labor certification is approved, to revoke the approved labor certification;
  3. Deny the EB immigrant petition; or
  4. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.